Updated material for David Favre, Animal Law, 3rd edition (2019)
This first list of new material is from newest to oldest. A second set is the table of contents with new material indexed and integrated.
--- Animal Rights
1. No legal rights for Chimpanzees
Wesley Smith, Chimpanzee Liberation? Why Animal Rights and Human Rights Cannot Coexist, National Review August 15, 2019
We live in profoundly anti-human times. Progressive cultural movements across a broad array of issues, from bioethics to environmentalism, seek to push us off the pedestal of unique value in both culture and public policy….
There is no question that chimpanzees are remarkable animals, and we certainly should treat them humanely. For example, they are highly social, and so it is cruel to isolate them in cages. But the reason that we refrain from doing so is that it’s our duty to treat all animals humanely in light of our best understanding of their natures and needs, not because chimpanzees and bonobos possess natural rights….
Please. Chimps are not civilized in the way of human beings. They don’t “define their own property,” have “goals,” or strive to “fulfill their personal potential” as we do in the exercise of our free will. They live by instinct and according to their evolved biological capabilities and natures, over which they have no control, and against which they have no capacity to rebel.
[Please read entire article.]
--- Best Interest Cases:
1. Cat, Replevin, New York
Finn v. Anderson, 2019 WL 1984091 (City Court, New York, Jamestown, Chautauqua County.) Purported cat owners, who found cat and took care of him, brought replevin action against neighbor who alleged original ownership of the cat.
Quotes from the case:
Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property—sometimes referred to as “chattel”—just like a car or a table”.
Nevertheless, there has been a slow evolution in New York case law towards the “de-chattelization” of household pets, and away from the “overly reductionist and utilitarian” view. Id. New York Courts, as well as most Courts across the United States, are unwilling to go so far as to adopt a child custody or “best interests” standard.
The “best interests” standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or “its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.” Travis v. Murray, ¶¶ 9-10, 42 Misc. 3d 447, 459, 977 N.Y.S.2d 621, 630-31 (Sup. Ct.). The subjective factors that are “key to a best interests analysis in child custody—particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations—are, for the most part, unascertainable when the subject is an animal rather than a human.” Second, even if it were possible to ascertain a pet’s feelings, and even if a Court could make a finding of a pet’s best interests, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors ... [t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children”.
Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” Travis v. Murray,
In accordance with that standard, this Court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care.In this way, the Court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.).
--- Animal Abuser Registry
An example of the criminal law providing increasing consideration to the importance of animals is the creation of an Animal Abuser Registry. These state registries parallel the registries for those who have been convicted of sex abuse crimes. For example, see the provision from the Tennessee Animal Abuser Registration Act adopted by Tennessee in 2015. (Tenn. Code Ann. Sec. 40-39-103) The Registry is a public internet database with the name, addresses and animal crimes of defendants. https://www.tn.gov/tbi/tennessee-animal-abuse-registry.html.
--- Animal in Divorces
In 2019 the State Of New Hampshire adopted amended their divorce law to address the issue of animals:
An Act relative to property settlement including animals. HB 361 2019 SESSION (19-0820)
(II-a). Tangible property shall include animals. In such cases, the property settlement shall address the care and ownership of the parties' animals, taking into consideration the animals' wellbeing.
Question: Is “animals’ wellbeing” a different standard from “best interest”? There is no definition of the term. How would define this for a judge?
Second Set
Chimpanzee, mag. article – no rights
Legal Rights not for Chimpanzee
CHAPTER 1 Introduction 1
Section 1. Debate of the Philosophers 1
Section 2. Pain and Suffering 5
Section 3. Two Welfare Perspectives 6
Section 4. The American View 7
Section 5. The Human Spectrum 12
Section 6. Which Meat to Eat? 14
Section 7. Are Animals Within Our Ethical World? 17
Section 8. Two Cases: Welfare and Rights 20
Section 9. The Limitations of Law 26
CHAPTER 2 Animal Ownership
Section 1. What Is Ownership? 29
Section 2. Obtaining and Losing Ownership Status 35
Section 3. Transferring Title 43
Section 4. When Owners Go Away 53
Section 5. Bailments 62
Section 6. Obligations of Ownership 65
CHAPTER 3 The Jurisprudence of Animals as Property
Section 1. Humans on the Property Line 73
Section 2. Wildlife 79
Section 3. Property Status or Not 81
Section 4. The Extra Property Status of Genetic Ownership 83
Section 5. The Property Status of Companion Animals 84
Section 6. Living Property 98
Section 7. Top- Down Changes in Europe 99
Section 8. A New Status for Domestic Animals 108
Divorces
In 2019 the State Of New Hampshire adopted amended their divorce law to address the issue of animals:
An Act relative to property settlement including animals. HB 361 2019 SESSION (19-0820)
(II-a). Tangible property shall include animals. In such cases, the property settlement shall address the care and ownership of the parties' animals, taking into consideration the animals' wellbeing.
Question: Is “animals’ wellbeing” a different standard from “best interest”? There is no definition of the term. How would define this for a judge?
Ownership – best interest/“quasi-interests based standard”
1. Cat, Replevin, New York
Finn v. Anderson, 2019 WL 1984091 (City Court, New York, Jamestown, Chautauqua County.) Purported cat owners, who found cat and took care of him, brought replevin action against neighbor who alleged original ownership of the cat.
Quotes from the case:
Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property—sometimes referred to as “chattel”—just like a car or a table”.
Nevertheless, there has been a slow evolution in New York case law towards the “de-chattelization” of household pets, and away from the “overly reductionist and utilitarian” view. Id. New York Courts, as well as most Courts across the United States, are unwilling to go so far as to adopt a child custody or “best interests” standard.
The “best interests” standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or “its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.” Travis v. Murray, ¶¶ 9-10, 42 Misc. 3d 447, 459, 977 N.Y.S.2d 621, 630-31 (Sup. Ct.). The subjective factors that are “key to a best interests analysis in child custody—particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations—are, for the most part, unascertainable when the subject is an animal rather than a human.” Second, even if it were possible to ascertain a pet’s feelings, and even if a Court could make a finding of a pet’s best interests, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors ... [t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children”.
Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” Travis v. Murray,
In accordance with that standard, this Court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care.In this way, the Court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.).
CHAPTER 4 Damages for Harm to Pets
Section 1. Overview 111
Section 2. The Traditional Calculation — Harm to Property 113
Section 3. Consequential Damages — Additional Categories 116
Section 4. Negligent Infliction of Emotional Distress 120
Section 5. Rejection of New Cause of Action 126
Section 6. A Little Science 127
Section 7. Intentional Infliction of Emotional Distress and Punitive Damages 132
Section 8. Veterinarian Malpractice 135
Section 9. Violation of Constitutional Rights 145
Section 10. Animal Consortium 147
Section 11. Statutory Damages 151
CHAPTER 5 State Regulation of Ownership
Section 1. The Police Power Generally 155
Section 2. Limitations on Police Power — Constitutional Rights 157
Section 3. Dangerous Dogs 172
Section 4. Local Government — Nuisance and Zoning 181
Section 5. Actions of State Agents 185
CHAPTER 6 Anti-Cruelty Laws — History and Intentional Acts
Section 1. Historical Perspective 191
Section 2. Intentional Acts 203
Section 3. Constitutional Issues 216
Section 4. Defenses and Exemptions 227
Section 5. Animal Fighting 234
Animal Abuser Registry
An example of the criminal law providing increasing consideration to the importance of animals is the creation of an Animal Abuser Registry. These state registries parallel the registries for those who have been convicted of sex abuse crimes. For example, see the provision from the Tennessee Animal Abuser Registration Act adopted by Tennessee in 2015. (Tenn. Code Ann. Sec. 40-39-103) The Registry is a public internet database with the name, addresses and animal crimes of defendants. https://www.tn.gov/tbi/tennessee-animal-abuse-registry.html.
CHAPTER 7 Anti- Cruelty Laws — Duty to Provide Care
Section 1. Which Animals? Which People? 244
Section 2. Scope of the Duty of Care 249
Section 3. Special Case — Puppy Mills 253
Section 4. Duty to Provide Veterinary Care 257
Section 5. Special Case — Hoarders 266
CHAPTER 8 Agricultural Animals
Section 1. About the Animals 277
Section 2. Lack of Law 285
Section 3. What Is Acceptable Welfare? 300
CHAPTER 9 The Animal Welfare Act
Section 1. Introduction 325
Section 2. Class A and B Dealers 336
Section 3. Class C Exhibitors 343
Section 4. Enforcement 358
Section 5. Animals Used by Science 360
CHAPTER 10 Animal Rights — The Jurisprudence
Section 1. Introduction 363
Section 2. Philosophy and Religion — Ethical Perspectives 363
Wesley Smith, Chimpanzee Liberation? Why Animal Rights and Human Rights Cannot Coexist, National Review August 15, 2019
We live in profoundly anti-human times. Progressive cultural movements across a broad array of issues, from bioethics to environmentalism, seek to push us off the pedestal of unique value in both culture and public policy….
There is no question that chimpanzees are remarkable animals, and we certainly should treat them humanely. For example, they are highly social, and so it is cruel to isolate them in cages. But the reason that we refrain from doing so is that it’s our duty to treat all animals humanely in light of our best understanding of their natures and needs, not because chimpanzees and bonobos possess natural rights….
Please. Chimps are not civilized in the way of human beings. They don’t “define their own property,” have “goals,” or strive to “fulfill their personal potential” as we do in the exercise of our free will. They live by instinct and according to their evolved biological capabilities and natures, over which they have no control, and against which they have no capacity to rebel.
[Please read entire article.]
Section 3. Jurisprudence — What Is a Legal Right? An Interest? 379
Section 4. Present Legal Status 386
Section 5. Access and Standing 394
Section 6. Future Possibilities 425