Animal Law Gaining Ground in the United States

Posted on July 18, 2008

As attitudes have evolved during the past 20 years, animal law practice
and education have steadily increased, and they continue to gain ground

by Paria Kooklan

Originally published in: Student Lawyer, February 2008, Vol. 36, No. 6

Some
people go to law school because they want an intellectual challenge.
Others crave the adrenaline rush of trying a case in court, or the
money and prestige that being a lawyer can bring. Alexis Fox went to
law school to help animals.

"I realized that going to law school was one of the best things I could do for animals," she explains.

Fox
first became interested in animal rights when she took an undergraduate
environmental ethics course at Bates College in Lewiston, Maine, where
she later started a campus vegetarian club. Now a second-year student
at Lewis & Clark Law School in Portland, Oregon, she is helping to
litigate several cases as part of the school’s animal law clinic.

One case is a veterinary malpractice lawsuit,
another involves a pet dog shot by a neighbor, and the third is a due
process case in which a man’s dog was euthanized by city animal control
officers without his knowledge. "I’m learning a lot about the law,"
says Fox.

In addition to participating in the animal law clinic, Fox codirects Lewis & Clark’s Student Animal Legal Defense Fund (SALDF) chapter, writes for the Animal Law Review,
and is helping to plan the 15th Annual Lewis & Clark Animal Law
Conference. "People at school kind of know me as the ‘animal law
girl,’" she adds. "But I’m not the only one. There are others here at
Lewis & Clark, and hundreds more at other schools. And it’s
growing."

Growing Interest

Fox
is right. The past two decades have witnessed an explosion of interest
in animal law at schools around the country. In 2000, there were only
nine animal law courses in the nation. Today, 89 of the 196
ABA-approved law schools offer animal law as part of their curriculum.

Much of this growth is due to the efforts of an
advocacy organization called the Animal Legal Defense Fund (ALDF). In
addition to litigating on behalf of animals, the group runs an Animal
Law Program with the goal of getting every law school in America to
offer an animal law course. Part of the way it hopes to achieve this is
by chartering and providing support for SALDF chapters like the one
Alexis Fox codirects. There are currently 106 SALDF chapters, up from
just 12 in 2001.

"In the beginning, it was just a matter of
providing them with our support, assistance, and expertise," says
Pamela Hart, who directs the program. "We found that once a school
has a SALDF chapter, the animal law course often follows because the
students organize and ask for it. The students are really the driving
force of this movement."

Hart, who often meets with law school deans
and professors on behalf of ALDF, also attributes the growth of animal
law courses to the broad range of legal subjects such courses usually
encompass. The typical animal law course might touch on topics ranging
from constitutional rights for animals to criminal penalties for animal
cruelty to estate planning issues involving pets.

"Once you talk to these law school deans and
explain to them how much animal law intersects with traditional areas
of the law, they really sit up and take notice," she asserts. "It’s a
wonderful tool for teaching about the law."

Some law schools are going beyond offering a single
class to building entire animal law programs. Harvard Law School now
hosts an animal law conference and national moot court competition.
Georgetown University Law Center has partnered with the Humane Society
of the United States to establish an animal protection litigation
seminar and a postgraduate fellowship program, as well as a conference
of its own. Duke University School of Law and The George Washington
University Law School both have introduced animal law clinics.

Several of these programs are funded in part by
television personality Bob Barker, who in recent years gave $1 million
grants, specifically for animal rights law education, to the law
schools at Harvard, Stanford University, Columbia University, Duke,
Georgetown, Northwestern University, and the University of California,
Los Angeles.

According to noted animal lawyer and former ALDF
president Steven M. Wise, Barker has the right idea. Wise taught the
first animal law course at Harvard Law School and wrote the seminal
animal rights book Rattling the Cage: Toward Legal Rights for Animals.

"I
knew that before we could achieve real victories in court we had to
achieve academic legitimacy," he notes. "That’s why I started writing
and teaching–because once you have a class at Harvard, and once you
have a few books published, people take you seriously."

Fellow animal law professor Paul Waldau, who
teaches at Harvard and Boston College law schools, stresses the
importance of making animal law classes just as challenging as other
parts of the law school curriculum, if not more so.

"When I started out, I knew that if I taught a
fluffy class, people wouldn’t respect it and it wouldn’t last," he
says. "If you want credibility in the law school environment, you have
to teach rigorous classes."

Wise agrees. "I teach very high-level academic
classes with a lot of difficult reading," he says. “And we ask the
tough questions: What are rights? Where do they come from? Should
humans have rights? And if humans have them, why not animals? We look
at the legal system in a very fundamental way.

"It’s the most intellectually exciting subject I can think of."

One
reason Wise is so vehement about academic legitimacy is that he
remembers how difficult things were for animal lawyers back in the
early 1980s, when he began taking his first cases.

"I had to endure the ridicule of my own law
partners, of other attorneys, and of judges," he admits. "People made
fun of me all the time, even in the courtroom."

A former general practitioner, Wise was inspired to
change his law practice after reading Peter Singer’s influential animal
rights book, Animal Liberation.
At the time, he believed he was the only lawyer in the country, if not
the world, who practiced animal law. "I’d simply never heard of anyone
else doing it, and, in fact, there were only about 10 of us in the
whole country taking animal cases back then," he says.

Luckily, things have changed a lot since then. The
ranks of lawyers who practice animal law–whether exclusively or as a
portion of their practice–have grown significantly since Wise’s early
days in the field. Today, lawyers around the country create pet trusts,
file veterinary malpractice suits, litigate pet custody cases,
prosecute animal abusers, file lawsuits against factory farms, and
more. The ALDF’s lawyer volunteer network has grown from 70 in 2002 to
more than 650 in 2007, while the ABA Tort Trial & Insurance
Practice Section has created its own Animal Law Committee.

"Today,
we might win or we might lose cases, but no one doubts that we’re
serious or that what we’re doing is important," maintains Wise.

A number of midsized and large law firms have even
added animal rights cases to their roster of pro bono projects. Erin
Sheley, a second-year associate at Gibson, Dunn & Crutcher in
Washington, D.C., says her firm has been extremely supportive of her
pro bono work for the Humane Society of the United States. Moreover,
the hours she spends writing pleadings and briefs in dogfighting cases
count toward her required billable hours for the year.

"Whenever I talk to people about the work I’m
doing, they are–without exception–enthusiastic about it, probably even
more so now that dogfighting has become such a big media issue," she
says. "The partner who sponsored my project, in particular, has made it
clear how important he views the work to be, even taking the initiative
to ask if there is anything more we could be doing."

According to Pamela Hart, stories like
Sheley’s are a sign that animal law has gained mainstream acceptance:
"It’s been very encouraging that these large, conservative law firms
are taking notice; whereas, a couple of years ago it wasn’t quite so
easy to get people to partner with you to do animal law."

Both Hart and Wise point out the close
connection between the increasing number of animal law courses taught
at law schools and the growing number of animal lawyers.

"These courses are turning out a new generation of
lawyers who have been exposed to animal law, whether because they took
it or because their classmates took it," contends Wise. "And when some
of these people later ascend to the bench, they will do so as judges
who have had some exposure to animal law."

Recent Victories
All of
this increased animal law activity has led to some important victories.
Animal advocates are steadily gaining ground in courts and legislatures
across the country.

One particular area of success for animal lawyers
has been in the passage of anti-cruelty laws. In the past decade, 9
states have passed laws allowing animals to be protected by domestic
violence restraining orders, while 24 have enacted felony-level
penalties for animal abusers. On the federal level, Congress recently
enacted the Animal Fighting Prohibition Enforcement Act, which toughens
the penalty for the interstate transport of animals for fighting. The
law’s quick passage was due in part to the case of professional
football star Michael Vick, whose participation in a dogfighting
operation prompted widespread public outcry.

The changes have been equally dramatic outside the
criminal realm. While the $12 million the late Leona Helmsley left to
her Maltese was unusual in terms of its dollar amount, her decision to
create a trust fund for her dog was far from unique. Thousands of
individuals create pet trusts each year, and 16 states have enacted
statutes specifying that such trusts are valid and enforceable. In a
related trend, courts in several states have approved the appointment
of a guardian ad litem to appear in a lawsuit on behalf of animals
whose owners have died.

Even farm animals, who tend to lag far behind pets
in terms of the legal protections they receive, have made gains in
recent years. Oregon prohibited the use of gestation crates for pigs,
while Arizona outlawed both gestation crates and veal crates. An
Illinois judge recently upheld the City of Chicago’s ban on foie gras,
and California enacted an eight-year plan to phase out the delicacy,
which is produced through the force-feeding of geese.

Perhaps most important, a small but steady trickle
of recent lawsuits has resulted in decisions that recognized companion
animals like dogs, cats, and even horses as more than mere property. In
2006, for instance, a Washington court awarded plaintiff Bernadette
Womack emotional distress damages in connection with the death of her
cat, Max, who was intentionally set on fire by two local teens. It was
a significant departure from the traditional rule in such cases, under
which Womack would have been able to recover only the market value of
the animal.

Such outcomes are encouraging to animal lawyers,
many of whom believe that, when it comes to companion animals, the law
lags far behind mainstream societal attitudes.

"There’s such a gulf between what the law says and
what society says on a lot of these issues," Alexis Fox says. "People
are shocked when they find out that the law views their cat or dog as
the equivalent of a piece of furniture."

Evolving Attitudes
According
to Steven Wise, this sensitivity in societal attitudes about the animal
kingdom has grown alongside our knowledge about animals.

"There’s been a scientific revolution, starting in
the 1960s with people like Jane Goodall, in terms of our knowledge
about animals," he says. "In the past, it was widely believed that
animals didn’t really think or have feelings–now we know that they do."
Goodall is an animal behaviorist whose work contributed to the study of
social learning, primate cognition, thinking, and culture in wild
chimpanzees, leading to the understanding that animals possess many
qualities previously attributed only to humans.

Wise points to the spate of recent news stories
about the death of Alex the Parrot, who was the subject of a 30-year
cognition study at Massuchusetts Institute of Technology, as another
example of progress. "Those news stories basically recognized that Alex
had a complex mind. You wouldn’t have seen that in previous decades."

Wise also notes that the post-World War II era’s
focus on human rights helped establish a foundation for animal
advocates to build upon. "The idea that there are certain rights that
should never be trespassed upon–that’s really the background for what
we’re doing."

Paul Waldau credits the environmental movement as
instrumental, as well as the veterinary profession’s promotion of the
human-animal bond. These various factors, along with the efforts of
animal advocates, set the stage for the victories of recent years.

"Part of it was that the law is really good at
calling out oppressions, so the oppressions suffered by animals were
bound to be noticed," Waldau suggests. "And part of it was that society
has provided more fertile ground for the advancement of the movement.
As with any movement, it’s a combination of factors that made success
possible."

Future Goals
While animal
law has gained a foothold at law schools and in the legal profession,
animal lawyers are the first to point out that they have a long way to
go. The law still views pets as property in most cases, wildlife and
farm animals have yet to be afforded basic protections against cruelty,
and scarce resources mean that existing laws are often not enforced.

But advocates are hopeful. Wise, who has argued for
constitutional rights for certain primates, predicts that animals will
achieve legal rights in some form within the next two decades: "I think
you’ll see the first cases where nonhuman animals are given some form
of legal personhood–not just cases in which you interpret a statute to
protect animals, but cases where nonhuman animals are given actual
legal rights."

Waldau is more cautious. He predicts that achieving
legal rights for animals will take closer to 50 or 60 years: "I do
think it will happen eventually, but what will become feasible in the
next decade or two is providing animals with fundamental legal
protections. You don’t necessarily have to use the very complicated
mechanism of rights to do that. Animal law is a very diverse tool."

In the meantime, both Wise and Waldau plan to
continue teaching, writing, and speaking publicly about animal law.
Wise will also continue to litigate animal cases.

"I don’t think my work is going to change people’s
minds because I know how permanent people’s beliefs are," he says.
"However, as we get more people on the bench who have been exposed to
animal law, they will be more open to our ideas and more understanding
of the fact that they can adopt those ideas without embarrassment."

On the law school front, Pamela Hart says the
ALDF’s goals for the next five years include the establishment of SALDF
chapters and animal law courses at every ABA-approved law school. The
organization is also working to provide more financial and employment
resources for aspiring animal lawyers.

That’s good news, says Fox. "The big thing we need
is jobs. There are a lot of us who are very passionate, but we need
jobs in animal law to take the next step."

To that end, the ALDF recently introduced an
externship program, as well as two paid summer law clerkships.
Beginning in 2008, the group will also provide a limited number of
scholarships for qualifying second- and third-year law students.

Hart also urges young animal lawyers to be
creative. "The flip side of it being such a nascent field is that you
can pick your passion," she says. "There are opportunities out there,
but you have to be entrepreneurial."

That’s exactly what Fox plans to do after
graduation. While her first choice would be to work for a nonprofit
like the ALDF, she is prepared to fit animal law into her life any way
she can. "If I have to start my own firm, or work for a regular law
firm for a while and take animal cases on the side, then that’s what
I’ll do."

In the meantime, she plans to keep promoting animal
rights, both on and off campus. "I think it’s really important for
students who are interested in animal law to reach out to their peers
in law school, to their friends and family members, and to people in
society generally," she concludes. "People are starting to become so
sensitive to these issues. And as society continues to change, the law
will change with it."

Paria Kooklan is a legal journalist in Los Angeles.