Animal & Natural Resource Law Review Volume XVI

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Published by the students of Michigan State University College of Law

Animal & Natural Resource Law Review

Vol. XVI (2020)

The table of contents is provided below.

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Table of Contents

ARTICLES

Animal Labor, Ecosystem Services

Charlotte E. Blattner..............................................................................1

Animal law has traditionally focused on the legal status of animals as either property, persons, or something in between. Recent scholarship seems to open a new avenue that allows us to ask if shifting our focus to animals’ activities can inaugurate more just human-animal relations. Ecosystem services (“ES”) proponents posit that animals’ services are largely ignored by humans, and that their worth should be calculated by cost-benefit analyses of the benefits animals provide humans. Animal labor (“AL”) proponents provoke with the claim that animals have been working for humans for centuries without wages and benefit of core labor protections that human workers enjoy and suggest we should extend labor rights to animals. These concepts, seemingly similar, diverge in important respects and lead us down different paths. This article explores the breadth, demands, and consequences of the ES and AL approaches, identifying the advantages and disadvantages of each. It evaluates their ability to (i) make animals and their services visible and recognizable, (ii) establish new and effective forms of protection for them, (iii) address and resolve conflicts of interests with humans, and (iv) operate independently of economic parameters. This comparative analysis shows why AL must be preferred over ES, and how combinations of AL and ES can contribute to the slow but gradual rapprochement of animal law and environmental law.

Adding Tools to the Conservation Toolbox: Can International Trade Policies that Under Tax Mongolian Cashmere Provide Relief to Mongolia’s Overtaxed Grasslands

Michael R. Eitel...................................................................................41

Temperate grasslands are among the world’s most threatened ecosystems. Anthropogenic actions are altering their capacity to sustain biodiversity and buffer plants and animals against climate fluctuations and change. Mongolia contains the largest remaining intact grassland assemblage in the world, but over 300,000 herders grazing nearly 66.5 million livestock are driving the grasslands to their breaking point. As a result, a sense of urgency exists to adopt and implement policies that address the ecological health of Mongolia’s grasslands. The United States’ Congress recently introduced the Mongolia Third Neighbor Trade Act—trade legislation that removes tariffs for processed Mongolian cashmere products, thereby encouraging domestic cashmere processing in Mongolia. This article examines how this economic policy interacts with broader domestic and international efforts to protect and conserve Mongolia’s grasslands.

Think About Mink: Examining the Gap in Legal Protection for Fur-Framed Animals Through the Lens of Mink Farming

James Kener.........................................................................................81

As expected, most cruelty against animals is outlawed by various federal, state, or municipal statutes. These statutes offer protection for wild and domesticated animals alike. Unfortunately, due to a combination of egregious inaction and ineffective legislating, animals farmed for their fur, like mink, are completely vulnerable to abuse and cruelty without any legal or legislative remedies to protect them. The outdated federal legislation that allows the exploitation of fur-farmed animals must be remedied, and a complete legislative phase-out of fur farming in its entirety must be contemplated. Through the lens of the cruel injustices occurring in mink farms across America, this article advocates for legal solutions to help protect defenseless animals who cannot advocate for themselves. There is no longer a need to preserve profits over the basic welfare and respectful treatment of mink with many fur alternatives on the market.

Federalism and Animal Law in Canada: A Case for Federal Animal Welfare Legislation

Samantha Skinner..............................................................................105

This article explores the subject of laws as they influence animals within Canadian federalism. Part I explains the division of powers as a barrier for animal protections in Canada. As the subject of animals is not expressly articulated within the division of powers, laws have been passed by both federal and provincial legislatures (including municipal by-laws) which relate to animals. Unfortunately, the resulting jurisdiction-specific laws result in patchwork protections and a lack of uniformity in animal laws across Canada. Federal legislation is needed to ensure uniform protections for animals nation-wide. Part II addresses the question of jurisdiction: which level of government has the jurisdiction to legislate laws about animals? Jurisprudence from the Supreme Court is reviewed, and the division of powers test is applied to two current—albeit highly aspirational—pieces of draft animal rights legislation. Part III offers guidelines and considerations for future draft federal legislation which may withstand constitutional scrutiny. Legislation which criminalizes the abuse of animals has a high chance of withstanding a constitutional challenge as it is firmly rooted in the federal powers of criminal law.

Corporate Cruelty: Holding Factory Farms Accountable for Animal Cruelty Crimes to Encourage Systemic Reform

Mary Maerz........................................................................................137

Animal cruelty within industrialized animal agriculture, or factory farms, is a major concern of the animal protection movement. Two types of animal cruelty exist in factory farms: systemic and egregious cruelty. Systemic cruelty refers to day-to-day operations of factory farms which expose farm animals to the most constant and prolonged suffering. Egregious cruelty refers to specific acts of violence to animals by farm workers. While systemic cruelty is the top priority of animal advocates, only criminal prosecution of egregious cruelty has gained traction. This Note proposes that animal advocates, through the criminal justice system, should seek to apply the doctrine of corporate criminal liability to egregious anti-cruelty cases. Doing so would address the factory farming system itself, deter the corporation from allowing similar conduct to continue, incentivize the corporation to make systemic reforms to avoid liability, and address controversial prosecutions of factory farm workers. Anti-cruelty violations of workers can satisfy the elements of the legal doctrine for corporate criminal liability. Due to the nature of their day-to-day work, factory farm workers, when they commit acts of egregious cruelty, are employees of the factory farm corporation, working within the scope of their employment, and to the benefit of the corporation. The mens rea element required for criminal corporate liability can be satisfied by imputing the workers’ knowledge or intent to the corporation. Animal advocates can take advantage of the ability to prosecute egregious anti-cruelty cases arising from factory farms through corporate liability to better impact systemic cruelty reform.

Emergence of Global Animal Law as a Sepa rate Branch of International Law

Saba Pipia..........................................................................................171

This paper discusses the emergence of global animal law as an autonomous branch of international law through transnational legal processes, where the main actors are not only states, but also international organizations, individuals, NGOs, civil society movements, etc. A close examination of the recent developments in this field shows that the evolution of animal welfare norms have already reached the global level and this branch can already claim a place in the system of global law. Based on a thorough analysis of the existing universal or regional hard law instruments, as well as general principles of law, case law, and soft law, the paper suggests that the current state of development of animal law, indeed, indicates the existence of an international consensus towards the formation of global animal law as a separate branch of international law. The final part of the paper considers different models of how the process of animal law formation can be finalized, and additionally discusses the risk of fragmentation, which might be caused by the process of expansion of animal law.

Towards an EU Animal Welfare Law: The Case of Animal Testing and The Limits of New Welfarism

Richard Pavone...........................................................................193

With Article 13 of the Treaty on the Functioning of the European Union (TFEU, Lisbon version), the European Union (EU) formally recognized animal welfare as an issue of concern for Member States and EU institutions on the basis of animal sentience. The protection and welfare of animals (wildlife, zoo animals, farmed animals, pets, animals in transport and animals used for scientific and cosmetic purposes) is an issue already covered by a wide range of EU directives and regulations. The resulting EU animal welfare law sets a high level of protection for animals, amongst the highest in the world. This article focuses on the protection of the welfare of animals used in research, specifically Directive 2010/63/EU, covering the major legal issues surrounding its implementation and legal gaps in domestic law. In this regard, special attention is devoted to the legislation on laboratory animal welfare in Italy and Germany, representing two different legal models on the protection of animals used for research purposes (rather restrictive towards research in the case of Italy, rather friendly towards research in the case of Germany). In this framework, the article will suggest that—rather than the implementation problems raised by Directive 2010/63/EU—the main barrier to the promotion of animal welfare is the “New Welfarist” position upon which the EU policy on animal welfare is founded. Although it does establish a minimum standard of protection, the New Welfarist position maintains that animals can be exploited, killed, or slaughtered for the benefit of human beings. This essentially answers the market logic of EU institutions, which guarantees the free movements of goods, including animals, within an efficient and uniform internal market. EU efforts towards animal welfare are greatly hampered by this philosophical underpinning, which is strictly related to the anthropocentric vision that permeates EU environmental policy, which incorporates the EU animal policy.

Book Review: When Animals Speak: Toward an Interspecies Democracy, by Eva Meijer (2019)

George F. Tauge, Ph.D.......................................................................247

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