J ournal of a l nimal aw Michigan State University College of Law APRIL 2009 Volume V J a l o u r n a l o f n i m a l a w Vol. V 2009 E B ditorial oard 2008-2009 Editor-in-Chief AnnA BAumgrAs Managing Editor Jennifer Bunker Articles Editor rAchel kristol Executive Editor BrittAny Peet Notes & Comments Editor JAne li Business Editor meredith shArP Associate Editors tABBy mclAin A kishA townsend kAte kunkA mAriA glAncy ericA Armstrong Faculty Advisor dAvid fAvre J a l o u r n a l o f n i m a l a w Vol. V 2009 P r C EEr EviEw ommittEE 2008-2009 tAimie l. BryAnt dAvid cAssuto dAvid fAvre, chAir reBeccA J. huss Peter sAnkoff steven m. wise The Journal of Animal Law received generous support from the Animal Legal Defense Fund and the Michigan State University College of Law. Without their generous support, the Journal would not have been able to publish and host its second speaker series. The Journal also is funded by subscription revenues. Subscription requests and article submissions may be sent to: Professor Favre, Journal of Animal Law, Michigan State University College of Law, 368 Law College Building, East Lansing MI 48824. The Journal of Animal Law is published annually by law students at ABA accredited law schools. Membership is open to any law student attending an ABA accredited law college. Qualified candidates are encouraged to apply. Current yearly subscription rates are $27.00 in the U.S. and current yearly Internet subscription rates are $27.00. Subscriptions are renewed automatically unless a request for discontinuance is received. Back issues may be obtained from: William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209. The Journal of Animal Law welcomes the submission of articles, book reviews, and notes & comments. Each manuscript must be double spaced, in 12 point, Times New Roman; footnotes must be single spaced, 10 point, Times New Roman. Submissions should be sent to [email protected] using Microsoft Word (or saved as “rich text format”). Submissions should conform closely to the 18th edition of The Bluebook: A Uniform System of Citation. Authors should provide photocopies of the title pages of all sources used and photocopies of the phrases and sentences quoted from the original sources. All articles contain a 2009 author copyright unless otherwise noted at beginning of article. Copyright © 2009 by the Journal of Animal Law. J a l o u r n a l o f n i m a l a w Vol. V 2009 P r C EEr EviEw ommittEE Taimie L. Bryant is a Professor of Law at UCLA School Of Law where she teaches Property and Nonprofit Organizations in addition to teaching different courses on animal law. Prior to receiving her J.D. from Harvard Law School, Professor Bryant earned a Ph.D. in anthropology from UCLA. Since 1995, she has turned her attention to animal rights, focusing both on the theoretical issues of conceptualizing such rights and on legislative and other legal regulations of human treatment of animals. Recent publications include Similarity or Difference as a Basis for Justice: Must Animals be Like Humans to be Legally Protected from Humans?, False Conflicts between Animal Species, and Transgenic Bioart, Animals and the Law. David Cassuto is a Professor of Law at Pace University School of Law where he teaches Animal Law, Environmental Law, Property Law, and Professional Responsibility. Professor Cassuto has published and lectured widely on issues in legal and environmental studies, including animal law. He is also the Director of the Brazil- American Institute for Law & Environment. He holds a B.A. from Wesleyan University, an M.A. & Ph.D. from Indiana University, and a J.D. from the University of California, Berkeley, Boalt Hall School of Law. David Favre is a Professor of Law at Michigan State University College of Law. He is Faculty Advisor to the Journal of Animal Law and Chair of the Peer Review Committee of the Journal. As Editor- in-Chief of the Animal Legal and Historical Web Center, he has published several books on animal issues. He teaches Animal Law, Wildlife Law, and International Environmental Law. Rebecca J. Huss is a Professor of Law at Valparaiso University School of Law in Valparaiso, Indiana. She has a LL.M. in international and comparative law from the University of Iowa School of Law and graduated magna cum laude from the University of Richmond School of Law. Recent publications include Companion Animals and Housing in Animal Law and the Courts: A Reader; Rescue Me: Legislating Cooperation between Animal Control Authorities and Rescue Organizations; Valuation in Veterinary Malpractice; and Separation, Custody, and Estate Planning Issues Relating to Companion Animals. Her primary focus in research and writing is on the changing nature of the relationship between humans and their companion animals and whether the law adequately reflects the importance of that relationship. Peter Sankoff is a Senior Lecturer at the University of Auckland, Faculty of Law, where he has taught animal law, criminal law and evidence since 2001. Peter graduated with a B.A. (Broadcast Journalism) from Concordia University in 1992, a J.D. from the University of Toronto in 1996, and an LL.M. from Osgoode Hall Law School in 2005. Peter has also worked as a law clerk for Madame Justice Claire L’Heureux-Dubé at the Supreme Court of Canada and for the Canadian federal government as an advisor on human rights matters involving criminal justice. From 2002-2006, Peter was the Co-Chair of the Executive Committee of the Animal Rights Legal Advocacy Network (ARLAN), a New Zealand group of lawyers and law students working on animal welfare issues, and also the editor of the ARLAN Report, a short journal discussing topics relating to animals and the law. In 2007, Peter won a $15000 grant from Voiceless, the fund for animals (with Steven White of Griffith Law School) to produce a workshop entitled Animal Law in Australasia: A New Dialogue. From this workshop will emerge the first book on animal law ever written in the Southern Hemisphere, expected in late 2008. To learn more about this and other aspects of Peter’s work, visit: www.lawstaff. auckland.ac.nz/~psan009. Steven M. Wise is President of the Center for the Expansion of Fundamental Rights, Inc. and author of Rattling the Cage - Toward Legal Rights for Animals (2000); Drawing the Line - Science and The Case for Animal Rights (2002), Though the Heavens May Fall - The Landmark Trial That Led to the End of Human Slavery (2005), as well as numerous law review articles. He has taught Animal Rights Law at the Vermont Law School since 1990, and at the Harvard Law School, John Marshall Law School, and will begin teaching at the St. Thomas Law School. He has practiced animal protection law for twenty-five years. J a l o u r n a l o f n i m a l a w Vol. V 2009 t C aBlE of ontEnts artiClEs animal EthiCs and BrEEd-sPECifiC lEgislation Bernard E. Rollin, Ph.D. ..................................................................1 This paper offers a conceptual analysis of the ethics of breed-specific legislation. It discusses the public’s ethical concern for the treatment of animals. It also asks whether it is ethical to regulate animals (i.e. pit-bulls) based on their breeds, rather than on their individual behavior. Additionally, it explores the effects of breed-specific legislation on the companionship between animals and man. should PEoPlE of Color suPPort animal rights? Angela P. Harris .............................................................................15 There is anecdotal reason to believe that many people of color – in particular, African Americans – view animals rights as a “white” phenomenon. Taking the case study of a PETA campaign that compared animal abuse to the Atlantic slave trade, the author explores reasons why people of color might be justified in seeing the animal rights movement as incorporating racist stereotypes, but concludes that people of color ought to support an anti- racist version of animal rights. animal Equality, human dominion, and fundamEntal intErdEPEndEnCE Tucker Culbertson ..........................................................................33 In this article, I argue for advocacy which emphasizes the fallacy of human dominion rather than the propriety of “animals’ rights.” Such advocacy would lead beyond unfortunately retrogressive debates over the similarities and differences among human and other animals, and could advance a jurisprudence of constitutional duties not triggered by another’s constitutional rights. Moreover, disestablishing myths of human dominion would unsettle troubling elements of liberal constitutionalism in the United States and elsewhere – namely, rigid constructions of state sovereignty and individual subjectivity – which often derive from the very myths of human dominion that also justify inhuman animals’ subordination. Disestablishing human dominion in the interest of inhuman animals can thus draw upon i and advance the ongoing development of an affirmative anti-subordination jurisprudence under the 14th Amendment of the Reconstruction Constitution’s enfranchisement of a radical constitutional subject – the person – which includes but is not limited to members of the human species. a nEw Call to arms or a nEw Coat of arms?: thE animal rights and EnvironmEntalism dEBatE in australia Olivia Khoo ....................................................................................49 There has been popular and political support in Australia in recent years towards a consideration of environmental issues, most notably in the form of a proposed carbon emissions trading scheme. In the midst of this widespread ‘call to arms’ to enact policy to regulate environmental issues, animal welfare continues to be ignored despite the important link between animal welfare and environmental concerns. If it is considered at all, animal welfare is often viewed as antagonistic or marginal to environmental matters. This paper examines the relationship between animal welfare and emerging environmental policies in Australia. It asks whether animal welfare can be reconciled with these nascent environmental concerns and questions whether there should be a corresponding ‘call to arms’ respecting animal welfare in Australia. wildlifE and thE Brazilian aBolitionist movEmEnt Heron José de Santana Gordilho ...................................................71 This paper aims to contribute to the ethical debate on the relationship between humans and animals and demonstrate that the Brazilian Federal Constitution of 1988 has already elevated animals to the level of legal subjects, able to enjoy and exercise basic rights. It initially analyses the moral grounding of speciesism which claims that animals lack spirituality and therefore puts the interests of mankind above those of other species, and departing from Darwin’s theory of evolution show us the actual evidence of this ideology. After this, it analyses the change in the wildlife legal status, from nobody’s thing (res nulium) to legal subject, as occurred in the case chimpanzee Swiss vs Salvador Zoo. This was the first case that recognised a chimpanzee as a plaintiff that achieved standing in a court of law through representatives The main focus of the study is to offer a legal interpretation to include wildlife on to the list of those entities without legal personhood who possess basic rights and standing to come before a court of law through representatives or legal substitutes. lEgal ProtECtion of animals: thE BasiCs Eleanor Evertsen and Wim De Kok ...............................................91 In 2005 the Dutch Minister of Agriculture announced his intention to