Animal Law: An Emerging Field

By Ilan Fischer, From Volume 1, Issue 2

The past decade has seen the rise of the newest legal frontier in Western nations – animal law. Given that there are no federal laws protecting 99% of animals in the US, this is one of the most pressing legal issues that has at last began to step into the spotlight.

Throughout history, animals have been treated by the law as a commodity worthy of protection only insofar as their owners’ interests dictated so, and devoid of any independent legal interests of their own. As such, looking back, laws relating to animals revolved around their proprietary value to their owners. Thus, for example, the owner of a cow might be able to sue another person for the damage that individual caused to his investment, but that same owner could not be held liable for any harm he himself caused to that same creature.i

Beginning in the late 19th century, the first laws were passed to recognize that animals themselves have an interest in being free from unnecessary and cruel suffering, giving the state the power to punish some kinds of infliction of pain on animals. While these laws have expanded the legal status of animals, animals retain a primary status of property: they are goods to be bought and sold – a principle which is deeply embedded throughout the existing legal system. Indeed, some of the first cases read in property law classes today are Pierson v. Postii and Keeble v. Hickeringill iii; which describe the acquisition, ownership, and control of property – namely foxes and ducks.

Yet, unlike other types of property, over the past century, American states have seen the passage of some regulations on how people treat animals. The passage of anti-cruelty statutes in this period outlawed inhumane treatment of certain animals, in particular pets, subjecting violators to criminal sanction for causing harm to other creatures. Penalties range from misdemeanor fines in most states to a more recent trend toward making such conduct a felony. iv This seems to have set animals apart, giving them a privilege status among other kinds of property. They are legally entitled to certain guarantees, namely that they would not be made to suffer unnecessarily. Or at least so it would seem.

The current state of the federal protection of animals from abuse occurs primarily in Title 7, Chapter 54, which legislates minimum standards “for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species” as well as “for exercise” and “for a physical environment adequate to promote the psychological well-being” of the animals. Additionally, it provides “for animal care, treatment, and practices to ensure that animal pain and distress are minimized, including adequate veterinary care with the appropriate use of anesthetic, analgesic, tranquilizing drugs, or euthanasia” (§ 2143).

From this, as is expected given the advanced state of civilization which we are in at the start of the 21st century, one may think that proper laws protecting animals are already in place, but one would be mistaken. Not surprisingly, a grand majority of Americans believe that there are such laws in place, and when informed that this is not the case, overwhelmingly affirm that it should be. But oddly, when the first federal Animal Welfare Act was passed in 1966, and at each successive amendment to it, legislators did not see it fit to extend such a law to 99% of animals used in the US. Instead, it seems as though they forgot that certain animals are in fact ‘animals’ too.

Preceding the above quoted passages, an important, and monumental stipulation is made, which has been hailed by agribusiness and other major industry interest groups alike. Namely, it so happens that very few animals are actually ‘animals’

in the legal sense of the term. “such term [“animal”] excludes:

(1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research,

(2) horses not used for research purposes, and

(3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber” (§ 2132).


Recently, strides have been made to combat this nightmarish state of affairs. Largely due to the work of major animal welfare groups, led by The Humane Society of the United States (HSUS), states have begun following the lead of the European Union in outlawing some of the cruelest of farming practices within their jurisdiction. In 2008, with the historic passing of Proposition 2 in California by the largest majority to have ever voted in favor of any ballot initiative, Californians succeeded in bypassing their agribusiness-influenced legislature, and banned some of the most inhumane practices on factory farms. Together with California, other states, including Florida, Arizona, Michigan, Colorado, and Maine, have all approved important measures to outlaw practices such as gestation crates for sows, veal crates, and battery cages.v With these advances, the US is well on its way to major gains in the realm of legal protection of animals from abuse.

With amounts of money that pale in comparison to the tens of millions of dollars that major agribusiness and related interests pour into such legal battles, it is an extraordinary legal phenomenon that animal groups are responsible for – one that should raise eyebrows. Rarely can a coalition that regularly raises less than a tenth the amount in contributions than the amount its opposition throws into a campaign fare well in the legal reality of today. Nonetheless, groups like HSUS repeatedly hand it to business groups by garnering a substantial public interest, one backed by the powerful forces of compassion and ethics.

Additionally, such trends are growing, as more and more interest groups converge on the issue of factory farming. Allying in massive coalitions of consumer interest groups, health and preventative medicine groups, environmental groups, and more, the legal force of Animal Welfare non-profit or oganizationshas grown exponentially. With presence in nearly every US state today, vi the interests of advancing the legal protection against torture of animals have truly taken a stronghold, and are here to stay.

Approximately 10 billion land animals and an additional unknown tens of billions of marine animals each year fall under exemption 3, representing 99% of all animals used in the U.S.

Given that at the beginning of the previous decade, no state had passed any specific farm animal protection laws, recent developments give us reason to be optimistic. There is still a very long way to go, but we have made some really important initial strides. Animal Law is being taught in more law schools in the U.S. than ever before (120 institutions, including Harvard and Stanford), and there are over 132 chapters of Student Animal Legal Defense Funds in law schools – a group affiliated with the national Animal Legal Defense Fund. vii Additionally, the rise in popularity of vegetarianism and veganism has led to their entrance into mainstream culture, as more and more Americans show their support for further legal action by actively boycotting the unregulated industries. There seems to be good reason to believe that before the turn of the next century, Americans will be gazing back upon current animal welfare legislation as we now do upon pre-1900’s civil rights legislation – as antiquated, hopelessly inadequate, and ultimately, unjustly insufficient in scope.


ii 2 Am. Dec. 264 (N.Y. 1805).

iii 103 Eng. Rep. 1127 (Q.B. 1707).

iv E.g. Colo.Rev.Stat. § 18-9-202 (providing both misdemeanor and felony penalties for cruelty to animals).


vi Id.


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