Reflections on animals, property, and the law and rain without thunder

Law and Contemporary Problems

Volumn 70, Issue 1, 2007, Pages 9-57

  Francione, Gary L ^a  

^a Lewis and Clark Law School   (United States)

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EID: 34548400671     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (221)

1. GARY L. FRANCION, ANIMALS, PROPERTY, AND THE LAW (1995). Throughout this article, I use "nonhuman" and "animal" interchangeably, but it should not be forgotten that humans are animals as well. In addition, I use "animal who" rather than "animal that" to emphasize that nonhumans are not objects, as implied by our reference to them as "it."
2. For a discussion of the necessity of animal use, see GARY L. FRANCIONE, INTRODUCTION TO ANIMAL RIGHTS: YOUR CHILD OR THE DOG? 1-49 (2000). Courts have explicitly recognized that prohibitions against "unneenssary" suffering or "needless" killingg must be interpreted by reference to institutional uses that are per se not necessary: The flesh of animals is not necessary for the subsistence of man, at least in this country, and by some people it is not so used. Yet it would not be denied that the killing of oxen for food is lawful. Fish are not necessary to any one, nor are various wild animals which are killed, and sold in market; yet their capture and killing are regulated by law. The words "needlessly" and "unnecessarily" must have a reasonable, not an absolute and literal, meanipg attached to them.
3. State v. Bogardus, 4 Mo. App. 215, 216-17 (1877).
4. Courts have also recognized that practices that are regarded as "cruel" as we normally use that term in ordinary discourse are permitted within the meaning of anticruelty laws. See FRANCIONE, supra note 1, at 146;
5. FRANCIONE, supra note 2, at 58-63;
6. see also infra notes 174-78 and accompanying text (discussing anticruelty laws).
7. See GARY L. FRANCIONE, RAIN WITHOUT THUNDER: THE IDEOLOGY OF THE ANIMAL RIGHTS MOVEMENT (1996)
8. Humane Methods of Slaughter Act of 1958, Pub. L. No. 85-765, 72 Stat. 862, (codified at 7 U.S.C. §§ 1901-1907 (2000)). Usually referred to as the "Humane Slaughter Act," the Act originally, applied to animals slaughtered for sale to the federal government, but was reauthorized in 1978 and covers animals slaughtered in federally inspected plants.
9. For a discussion of the considerations that motivated the Humane Slaughter Act, see FRANCIONE, supra note 3, at 95-102.
10. See also infra notes 107-09 and accompanying text (discussing failure to enforce the Humane Slaughter.Act).
11. See FRANCIONE, supra note 3, at 95-102. The "[f]indings and declarations of policy" of the Humane Slaughter Act make clear the importance of economic considerations in assessing matters of animal welfare: The Congress finds that the use of humane methods in the slaughter of livestock prevents needless suffering; results in safer and better working conditions for persons engaged in the slaughtering industry; brings about improvement of products and economies in slaughtering operations; and produces other benefits for producers, processors, and consumers which tend to expedite an orderly flow of livestock and livestock products in interstate and foreign commerce.
12. 7 U.S.C. § 1901 (2000).
13. See generally FRANCIONE, supra note 2;
14. Gary L. Francione, Animals - Property or Persons?, in ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS 108 (Cass R. Sunstein & Martha C. Nussbaum eds., 2004).
15. See, e.g., ROBERT GARNER, ANIMALS, POLITTCS AND MORALITY (2d ed. 2004);
16. MIKE RADFORD, ANIMAL WELFARE LAW IN BRITAIN. REGULATION AND RESPONSIBILITY 102-04, 394-95 (2001);
17. David Favre, Integrating Animal Interests into Our Legal System, 10 ANIMAL L, 87 (2004);
18. Robert Garner, Political Ideology and the Legal Status of Animals, 8 ANIMAL L. 77 (2002);
19. Jerrold Tannenbaum, Animals and the Law: Property, Cruelty, Rights, 62 SOC. RES. 539 (1995);
20. Cass R., Sunstein, Slaughterhouse Jive, NEW REPUBLIC, Jan. 29, 2001, at 40 (reviewing GARY L. FRANCIONE, INTRODUCTION TO ANIMAL RIGHTS: YOUR CHILD OR THE DOG? (2000));
21. Steven M. Wise, Thunder Without Rain: A Review/Commentary of Gary L. Francione's Rain Without Thunder: The Ideology of the Animal Rights Movement, 3 ANIMAL L. 45 (1997).
22. In the Introduction to Animals, Property, and the Law, I state: I do not maintain that characterizing sentient beings as property necessarily means that those beings will be treated exactly the same as inanimate objects or that properly can never have rights as a matter of formal jurisprudential theory. For example, although slaves were, for some purposes, considered "persons" who technically held certain rights, those rights were not particularly effective in providing any real protection for slaves. We could decide to grant certain rights to animals while continuing to regard them as property. The problem is that as ong as property is, as a matter of legal theory, regarded as that which cannot have interests or cannot have interests that transcend the rights of property owners to use their property, then there will probably always be a gap between what the law permits people to do with animals and what any acceptable moral theory and basic decency tell us is appropriate. FRANCIONE, supra note 1, at 14.
23. See Sunstein, supra note 7.
24. Peter Singer claims as one of the general "successes" of the animal-rights movement that the numbers of animals used in experiments in Britain has fallen to less than half of what it was in 1970. Peter Singer, Animal Liberation at 30, N.Y. REV. BOOKS, May 15,2003, at 25. Singer does not mention, however, that the number of animals used in Britain has increased in recent years. For example, in 2003, there were 2.8 million experiments involving animals in Britain, which was the largest number since 1994 and followed an increase of four percent from the previous year. Moreover, there have been significant increases in experiments involving physical trauma, psychological trauma, thermal injury, and aversive training.
25. See BRITISH UNION FOR THE ABOLITION OF VIVISECTION, UK ANIMAL EXPERIMENTS STATISTICS 2003, available at http://www.buav.org/pdf/Stats2003.pdf (discussing report by the Home Office of the United Kingdom).
26. Robert Garner states th it "[i]n many European countries... factory farming is much nearer to being phased out by state action" than it is in the United States. Garner, supra note 7, at 90. Garner's statement is certainly not accurate in that intensive agriculture is still very much the norm in Europe. In any event, there cannot be any real doubt that nonhumans in Europe are, despite any differences, still treated very badly. Moreover, there have been difficulties with domestic legislation to implement certain E.U. animal-welfare measures and the effect of free-trade agreements and other globalization efforts on domestic animal-welfare measures, many of which do not take effect until after 2010, remains to be seen. As a general matter, whenever human interests are implicated, nonhuman interests are ignored.
27. For example, fear over the H5N1 virus, which is commonly called the "bird flu," has resulted in producers of free-range chickens returning to more intensive methods. See, e.g., Brian Brady and Richard Gray, Jabs for Poultry Workers as Bird Flu Fears Grow, SCOTLAND ON SUNDAY, Feb. 26, 2006, at 11. Finally, European animal-welfare measures are often based on consideration of economic efficiency and have nothing to do with recognizing the inherent value of nonhumans.
28. Another comparative example offered frequently involves the fact that some nations, such as Britain, Sweden, and New Zealand, have laws or policies that afford more protection to great apes based on their similarity to humans. For the most part, there had been very little use of great apes in those countries, and restrictions were both easier to enact and less meaningful. Differential treatment of great apes also serves to reinforce speciesist hierarchies rather than to erode them. See infra notes 181-86 and accompanying text (discussing "similar-minds" theory).
29. PETER SINGER, ANIMAL LIBERATION (2d ed. 1990).
30. Singer, supra note 10, at 26.
31. Id.
32. Stephanie Simon, Killing Them Softly; Voluntary Reforms in the Livestock Industry Have Changed the Way Animals Are Slaughtered, L.A. TIMES, Apr. 29, 2003, at A1 (quoting Bruce Friedrich of PETA).
33. David Shaw, Matters of Taste; Animal Rights and Wrongs; When It Comes to Defending Livestock, Some Activists Are Going to Extremes, L.A. TIMES, Feb. 23, 2005, at F2 (quoting Lisa Lange of PETA).
34. See supra notes 4-5 and accompanying text;
35. see also infra notes 107-09 and accompanying text (discussing enforcement of the Humane Slaughter Act).
36. See FRANCIONE, supra note 3, at 99-100, 199-202.
37. Grandin, who claims that her autism enables her to understand the emotions of cows and other nonhumans, was the subject of a 1998 documentary, Stairway to Heaven, by filmmaker Errol Morris. The title of the film is based on a ramp designed by Grandin that is supposed to lead cows more calmly from the holding pen to their slaughter. Grandin maintains that "[p]roperly performed, 'slaughter is more humane than nature.'" OLIVER SACKS, AN ANTHROPOLOGIST ON MARS 268 (1995) (quoting Temple Grandin). Grandin ignores that cows would not die in "nature" as they would not exist if we did not cause them to come into being for the purpose of eating them.
38. See also TEMPLE GRANDIN & CATHERINE JOHNSON, ANIMALS IN TRANSLATION: USING THE MYSTERIES OF AUTISM TO DECODE ANIMAL BEHAVIOR (2005) (discussing the ways in which Grandin's autism supposedly provides her with insight about animal cognition).
39. TEMPLE GRANDIN, RECOMMENDED ANIMAL HANDLING GUIDELINES AND AUDIT GUIDE 6 (2005), available at http://www.animalhandling.org/ guidelines/2005RecAnimalHandlingGuidelines.pdf.
40. Temple Grandin, Humane Slaughter: Recommended Stunning Practices, http://www.grandin.com/humane/rec.slaughter.html (last visited Mar. 19, 2007).
41. Temple Grandin, Stress and Meat Quality: Lowering Stress to Improve Meat Quality and Animal Welfare, http://www.grandin.com/meat/meat.html (last visited Mar. 19, 2007).
42. Bruce Feinberg & Terry Williams, Animal Welfare Update: North America, http://www.mcdonalds.com/content/corp/values/report/archive/ progress_report/north_america.html (last visited Mar. 19, 2007).
43. Wendy's, Wendy's Animal Welfare Program, http://www.wendys.com/community/ animal_welfare.jsp (last visited Mar. 19, 2007).
44. Simon, supra note 14.
45. PETA, http://www.peta.org/MC/NewsItem.asp?id=5667&pf=true (last visited Mar. 19, 2007).
46. Patricia Leigh Brown, Is Luxury Cruel? The Foie Gras Divide, N.Y. TIMES, Oct. 6, 2004, at F10 (quoting Paul Waldau).
47. See also infra notes 137-41 (discussing the idea that we, can be "conscientious omnivores").
48. 42 U.S.C. § 287a-3a (2000) (establishing a sanctuary system for surplus chimpanzees).
49. 7 U.S.C. §§ 2131-2159 (2000). For a discussion of the Animal Welfare Act, see FRANCIONE, supra note 1, at 185-249.
50. See also infra notes 104-06 and accompanying text, (discussing exclusion of animals from coverage under the Act).
51. 42 U.S.C. § 287a-3a(a), (b).
52. Id. § 287a-3a(c), (d)(4).
53. Id. § 287a-3a(e)(4)(A), (B).
54. See 146 CONG. REC. S11654-55 (daily ed. Dec. 6, 2000).
55. Senator Smith stated: "It costs $8-$15 per day per animal to care for chimpanzees in a sanctuary, where they live in groups in a naturalized setting. That is compared to the $20-$30 per day per animal that the federal government is now spending to maintain the chimpanzees in laboratory cages." Id. at 11654.
56. Senator Durbin added: "And this legislation creates a public-private partnership, to generate non-federal dollars that will help pay for the care of these chimpanzees. Right now, their care is financed strictly through taxpayer dollars. Under the bill, the private sector will cover 10 percent of the start-up costs and 25 percent of the operating costs of the sanctuary system." Id.
57. For further discussion on the legislative rationale for the CHIMP Act, see S. REP. NO. 106-494, at 3 (2000) ("The CHIMP Act provides a cost-effective solution to the long term care needs of these chimpanzees. Sanctuary care for animals requires less intensive management than animals in research facilities, and therefore entails lower daily costs.")
58. 146 CONG. REC. S11655 (daily ed. Dec. 6, 2000) (statement of Senator Durbin).
59. See, e.g., Chimpanzee Health Improvement, Maintenance, and Protection Act: Hearing on H.R. 3514 Before the Subcomm. on Health and Environment of the H. Comm. on Commerce, 106th Cong. 34 (2000). Tina Nelson, Executive Director of the American Anti-Vivisection Society, stated: "I wish to emphasize the cost effectiveness of this solution. Sanctuaries offer considerable savings compared to the cost of housing chimpanzees in laboratories." Nelson's statement was offered on behalf of her own organization as well as the American Society for the Prevention of Cruelty to Animals, the National Anti-Vivisection Society, Society for Animal Protective Legislation, and The Humane Society of the United States.
60. 146 CONG. REC. S11655 (daily ed. Dec. 6, 2000) (statement of Senator Smith).
61. Id.
62. (quoting NATIONAL RESEARCH COUNCIL, CHIMPANZEES IN RESEARCH: STRATEGIES FOR THEIR ETHICAL CARE MANAGEMENT, AND USE 39 (1997)).
63. Id. (statement of Senator Smith).
64. Id (statement of Senator Durbin).
65. See generally FRANCIONE, supra note 3 (arguing that animal-welfare regulations do not lead to the abolition of animal exploitation and, indeed, make exploitation more acceptable as a general matter).
66. 42 U.S.C. § 287a-3a(d)(3)(A)(i) (2000).
67. Id. § 287a-3a(d)(3)(A)(ii)(III).
68. Id. § 287a-3a(d)(3)(A)(ii)(I).
69. Id. § 287a-3a(d)(3)(A)(ii)(II).
70. Id. § 287a-3a(d)(3)(A)(ii)(IV).
71. Id. § 287a-3a(d)(3)(B)(ii).
72. The requirements for invasive research do not apply to noninvasive behavioral studies or medical studies. Id. § 297a-3a(d)(3)(A)(i).
73. Id. § 287a-3a(d)(3)(B)(iii).
74. Id. § 287a-3a(d)(3)(C). This provision appears to apply to both noninvasive and invasive research.
75. Some organizations that initially supported the CHIMP Act claimed to withdraw support when the bill was amended to allow continued invasive research on sanctuary chimpanzees. This withdrawal of support was often done quietly. For example, the American Anti-Vivisection Society, which actively supported the bill, see supra note 33, claimed to withdraw support after the bill was amended, but this withdrawal consisted only of a withdrawal of active support and not any public opposition to the bill.
76. See Letter from Tina Nelson, Executive Director of the American Anti-Vivisection Society, to Hon. James Greenwood (Oct. 23, 2000) (on file with the author). I was unable to find any indication that organizations that supported the Act objected at any point to the exception for noninfasive behavioral research or medical studies, even though these may involve some level of harm, pain, distress, and disturbance.
77. The National Institutes of Health proposed regulations to implement the CHIMP Act. See Standards of Care for Chimpanzees Held in the Federally Supported Chimpanzee Sanctuary System, 70 Fed. Reg. 1843 (Jan. 11, 2005) (to be codified at 42 C.F.R. pt. 9). A coalition of animal-protection organizations commented the proposed regulations and argued that there should be no further research on animals in the "sanctuary" system.
78. See Center for Great Apes, et al., Comment on Proposed Rules for Chimpanzees Held in the Federally Supported Chimpanzee Sanctuary System, (Mar. 14, 2005), http:/Www.neavs.org/downloads/programs/campaigns/ Comments_onΡoposed_Rules.pdf. As of the time that this essay went to press, the regulations were not available.
79. 146 CONG. REC. S11654 (daily ed. Dec. 6, 2000) (statement of Senator Smith).
80. For a discussion of the Silver Spring monkey case, including NIH representations to Congress, see FRANCIONE, supra note 1, at 72-78, 86-89.
81. See, e.g., Statement of GAP [The Great Ape Project], Nov. 29, 2000 (on file with author): "Some major supporters of GAP choose to support the amended bill (Jane Goodall, Marc Bekoff, Steve Wise), arguing that the sanctuary should be created and then we should fight with all our might if someone attempts to remove a 'retired' chimpanzee." I was unable to find any discussion of concern about noninvasive behavioral research or medical studies.
82. 42 U.S.C. § 287a-3a(e).
83. For the announcement by the National Center on Research Resources of the award of the contract to Chimp Haven, Inc., see http://www.ncrr.nih.gov/ compmed/cm_chimp.asp (last visited Mar. 19, 2007).
84. For information about Chimp Haven, Inc., including its board of directors, see http://www.chimphaven.org/about-board.cfm (last visited Mar. 19, 2007). Chimp Haven is apparently facing financial difficulties, Melody Brumble, Chimp Haven Faces Money Problems, THE TIMES (Shreveport, La.), Feb. 23, 2006, at 1A.
85. Singer, supra note 10, at 26. In response to the question, "In your opinion, what has been the most important victory for the animal movement?," Singer responded that in addition to a campaign against vivisection by be late animal-welfare advocate Henry Spira, he would: Also put the recent referendum victory on sow crates [gestation cratesc] in Florida very near the top, because that was the first time that a major form of factory farming has been banned in any state in America, and it showed that the public is on our side, when they have a chance to vote on the kind confinement that is standard in factory farms. COK Talks with Peter Singer, COMPASSION OVER KILLING, http://www.cok.net/abol/15/06.php (last visited Mar. 19, 2007).
86. FLA. CONST. art. X, § 21(a). The amendment takes effect in 2008. See id. § 21(g) (effective six years after approval by voters).
87. According to Floridians for Humane Farms, the Amendment "will prevent mega hog factories from moving into Florida as they have in North Carolina. We don't want Florida to follow North Carolina's experience where the environment has been damaged, property values have gone down, and the tourist industry has suffered." Floridians for Humane Farms, http://www.bancruelfarms.org/faq_print.htm (last visited Mar. 19, 2007).
88. The Humane Society of the United States, which, with Farm Sanctuary, is promoting the prohibition of gestation crates in other states, focuses heavily on the economic argument, and maintains that European studies demonstrate that sows raised in group housing with electronic sow feeding are generally more healtly, sow productivity is higher, and production costs are lower. THE HUMANE SOCIETY OF THE UNITED STATES, AN HSUS REPORT: THE ECONOMICS OF ADOPTING ALTERNATIVE PRODUCTION SYSTEMS TO GESTATION CRATES (2006) [hereinafter HSUS REPORT: GESTATION CRATES, available at http://www.hsus.org/web-files/PDF/farm/ econ_gestation.pdf. A similar proposal on crates, for sows, also applicable to calves, was passed in Arizona in November 2006, and Smithfield Foods stated in January 2007 that it would phase out gestation crates over a ten-year period.
89. See The Humane Society of the United States Praises Smithfield Move to End Confinement of Pigs in Gestation Crates, U.S. NEWSWIRE, Jan. 25, 2007, http://news.corporate.findlaw.com/ prnewswire/20070125/25jan20071000.html. Time constraints and editorial deadlines made it impossible to discuss these developments in this article, but they do not in any way affect my view that welfare reforms are generally linked to the efficient exploitation of animals.
90. The only two Florida hog farms that used gestation crates sent their animals to slaughter and closed their hog operations. Both could be eligible for state grants of up to $275,000. Allison North Jones, State Hog Farmers Receive a Bailout from Lawmakers, TAMPA TRIB., May 14, 2005, at Metro 1.
91. Curtis Krueger, 1.2-Million Greases Path of Pig Proposal, ST. PETERSBURG TIMES, Oct. 13, 2002, at 1B. The Florida Elections Commission charged Farm Sanctuary and its president, Gene Bauston, with 210 violations of Florida law for collecting "thousands of dollars in donations and funnel[ing] them to the amendment campaign, violating a law that requires that the names of all contributors be disclosed."
92. See Lucy Morgan, Panel Says Pig Proposal Backers Broke Election Law, ST. PETERSBURG TIMES, Oct. 30, 2002, at 5B.
93. FLA. CONST. art. X, § 21(c)(1). This is significant because some producers are moving toward a modified system in which pregnant sows will be confined for part of the day.
94. Id. § 21(b)(2),(c)(6).
95. Id. § 21(b)(1).
96. See, e.g., Ban Cruel Farms, Frequently Asked Questions, http://www.bancruelfarms.org/faq_print.htm (last visited Mar. 19, 2007) ("In European countries where similar legislation has been enacted, pig farmers have generally gone to a group housing system where the sows are kept together in more spacious conditions.").
97. FLA. CONST. art. X, § 21(c)(5).
98. Etan Horowitz, Amending Constitution Polarizes Sides, ORLANDO SENTINEL, Nov. 4, 2006, at B1. Supporters of the amendment offered as "[t]heir poster child: A $1.6 million campaign by animal rights groups in 2002 that won passage of an amendment preventing the caging of pregnant pigs, an amendment that affected only two farmers in the state."
99. Id. The supermajority amendment was approved by voters on November 7, 2006.
100. Howard Troxler, Stop Us Before We Amend Again!, ST. PETERSBURG TIMES, Nv. 8, 2006, at 8A.
101. The first line of the article reads: "It must have been the pregnant pigs that did it."
102. Id.
103. HSUS REPORT: GESTATION CRATES, supra note 56, at 2.
104. CAL. HEALTH & SAFETY CODE §§ 25980-84. (Deering 2005).
105. Id. § 25982. Some animal advocates have claimed that consumption of foie gras in California will be prohibited after July 1, 2012. This claim is unwarranted. Californians will still be able to purchase foie gras from sellers outside of California for personal use but may not resell it within the state. Restaurants may be able to continue to serve foie gras if it is served as a "chef's gift" with a meal and is not sold. The legislation has no effect on the production, marketing, or consumption of liver from birds who have not been force fed.
106. 2004 Legislative Review, 11 ANIMAL L. 325,360 (2005) (quoting HSUS sources).
107. Andrew Gumbel & John Lichfield, An Ending Made in Hollywood for an Epic Fight Over Foie Gras; The Headlines Proclaim That Arnold Schwarzenegger. Has Saved the Geese, THE INDEPENDENT (LONDON , Oct. 1, 2004, at 12.
108. See, e.g., Justin Berton, When All Else Fails, Throw Your Muleta at the Bull and Run, S.F. CHRON., June 18, 2006, at A1 (describing the experience of Americans at a bullfighting school in California). Another example of this phenomenon involves animal sacrifices. Practitioners of a Caribbean religion known as Santeria - usually immigrants and people of color - have been prosecuted for conducting ritual animal sacrifice as part of their religion. Animal sacrifice, although quite horrific, is really no different from what goes on at a federally regulated slaughterhouse.
109. See FRANCIONE, supra note 2, at 163-64 (discussing prohibitions of particular practices associated with other cultures or certain socioeconomic goups).
110. CAL. HEALTH & SAFETY CODE § 25984(a), (c) (Deering 2005).
111. Governor's Message to the California State Senate on Signing Cal. S.B. 1520 (Sept. 29, 2004), available at LEXIS, 2003 Legis. Bill Hist. CA S.B. 1520.
112. CAL. HEALTH & SAFETY CODE § 25984(b)(1), provides that "[n]o civil or criminal cause of action shall arise on or after January 1, 2005, nor shall a pending action commenced prior to January 1, 2005, be pursued under any provision of law against a person or entity for engaging, prior to July 1, 2012, in any act prohibited by this chapter." Section 25984(b)(3) provides that this immunity applies only "to persons or entities who were engaged in, or controlled by persons or entities who were engaged in, agricultural practices that involved force feeding birds at the time of the enactment of this chapter." Sonoma Foie Gras was the only producer of foie gras involved in the force feeding of birds at the time that the law was enacted. See Gumbel & Lichfield, supra note 69.
113. "Until 2012, meanwhile, Sonoma Foie Gras will be immune from all lawsuits - two of which had been pending before the courts but will now be dropped." Id. When Governor Schwarzenegger signed Senate Bill 1520 into law, a number of animal advocacy groups announced the signing as a victory for animals, and not one that I saw mentioned that any pending civil action against Sonoma would be dismissed and that Sonoma was immunized from civil and criminal action until 2012. For example, Farm Sanctuary, an organization that sponsored the legislation, omitted any reference to these crucial facts.
114. See NoFoieGras.org, Schwarzenegger Terminates Form of Animal Cruelty, http://nofoiegras.org/FS_cabill_PR2.htm (last visited Apr. 1, 2007).
115. Gumbel & Lichfield, supra note 69 (quoting Guillermo Gónzalez).
116. Brown, supra note 25.
117. Gabrielle Banks, Duck Farm Is on Capitol Agenda; The Owner's Production of Foie Gras is the Focus of Legislation That Would Ban Force-Feeding of the Birds, Decried as Cruel, L.A. TIMES, July 7, 2004, at B1.
118. Brown, supra note 25.
119. Id.
120. Carolyn Jung, Study Could Disrupt Planned Foie Gras Ban, SAN JOSE MERCURY NEWS, Oct. 27, 2004, at 1F.
121. See Brown, supra note 25.
122. Lawrence Downes, Face to Face With the Foie Gras Problem, N.Y. TIMES, June 26, 2005, at 11: "One Senate sponsor, Fohn Bonacic, is an upstate Republican who says he has no special sympathy for ducks or geese, despite what his bill says. He says he wants only to help a Sullivan County constituent - Hudson Valley Foie, Gras, the nation's leading producer of fresh foie gras, which has not only lobbied for the bill, but also helped to write it."
123. 154 F.3d 426 (D.C. Cir. 1998) (en banc).
124. The Legal Status of Nonhuman Animals, 8 ANIMAL L. 1, 3-4 (2002) (comment by David Favre).
125. See also Favre, supra note 7, at 95 (claiming that Glickman held that there was standing "to question the decisions of a federal agency" concerning animals). Favre is a national officer of the Animal Legal Defense Fund.
126. Rebecca J. Huss, Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals, 86 MARQ. L. REV. 47, 81 (2002).
127. 7 U.S.C. § 2143(a)(2)(B) (2000).
128. Glickman, 154 F.3d at 431 n.3.
129. Id. at 445.
130. Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229 (D.C. Cir. 2000). The appellate court reversed a trial court decision, Animal Legal Defense Fund, Inc. v. Glickman, 943 F. Supp. 44 (D.D.C. 1996), which held that the USDA had not promulgated the regulations required by the Animal Welfare Act.
131. Stephan K. Otto, State Animal Protection Laws - The Next Generation, 11 ANIMAL L. 131, 134-38 (2005).
132. See also FRANCIONE, supra note 2, at 68 (discussing whether this change will make any difference given the scope of application of anticruelty laws, the mens rea requirement, and the general reluctance to prosecute anticruelty cases);
133. infra notes 174-78 and accompanying text (discussing anticruelty laws generally).
134. 2004 Legislative Review, supra note 68, at 351-54 (2005).
135. Ian Urbina, Animal Lovers See an Interstate Trade in Moving Targets, N:Y. TIMES, June 10, 2004, at B1.
136. For a description of the Hegins event, see FRANCIONE, supra note 1, at xiii-xv.
137. Singer, supra note 10, at 25.
138. Julie Scelfo, Real Fur Is Fun Again, NEWSWEEK, Oct. 11, 2004, at 48.
139. Lizette Alvarez, 'New Fur' Doesn't Look as if It Ever Kept a Mink Warm, N.Y. TIMES, Oct. 15, 2004, at A4.
140. Wendy Navratil, Fur's Hot Again; The Animal-Rights Message Has Skipped a Generation, CHI. TRIB. Jan. 18, 2004, at Q1.
141. Rob Walker, The Way We Live Now: Consumed; Pelt Appeal, N.Y. TIMES, Feb. 12, 2006, at 30.
142. For example, both PETA, FurIsDead.com, China's Shocking Dog and Cat Fur Trade, http://www.furisdead.com/feat-dogcatfur.asp (last visited Mar. 19, 2007),
143. and HSUS, Dog and Cat Victims of the Fur Trade, http://www.hsus.org/ furfree/dogs_cats/dog_and_cat_victims.html (last visited Mar. 19, 2007), recommend that consumers purchase no fur products, but have campaigns that focus on dog and cat fur.
144. See infra note 102 on the seal campaign.
145. I have often discussed PETA's use of sexism in campaigns. See, e.g., FRANCIONE, supra note 3, at 74-76.
146. 2003 Legislative Review, 10 ANIMAL L. 363, 364-67 (2004).
147. Id. at 367-70.
148. 2002 Legislative Review, 9 ANIMAL L. 331, 338-40 (2003).
149. Canadian Press, Eyes of World on Seal Hunt That Starts Tomorrow, GUELPH MERCURY, Mar. 24, 2006, at A6.
150. A number of animal-advocacy organizations, including HSUS, have formed a coalition, the ProtectSeals Nework, to end the seal slaughter through a boycott of Canadian seafood. The Network urges those opposed to the seal slaughter to sign a pledge "not to buy Canadian seafood products such as snow crab, cod, scallops, and shrimp until Canada ends its commercial seal hunt for good." The petition may be found at https://community.hsus.orgt/campaign/protectseals (last visited Mar. 19, 2007. This suggests, of course, that sea animals have a different moral status than do seals, and implies that it is a acceptable to eat Canadian seafood as soon as the commercial seal hunt ends.
151. 2003 Legislative Review, supra note 99, at 378-82 (2004).
152. See supra note, 27.
153. Singer acknowledges that it is not possible to know the number of animals used in experiments in the United States, but he claims that estimates "suggest a similar story" of significant decline as in Britain. Singer, supra note 10, at 25.
154. Putting aside the validity of this claim as applied to Britain, see note 10 supra, it is unclear how Singer can make such a claim about the United States since rats, mice, and birds, which account for over ninety percent of the nonhumans used in the United States, are not covered by the Animal Welfare Act and their numbers are not reported. Therefore, no one knows the number of animals used. Government statistics on the relatively small numbers of animals covered by the Act indicate that animal use has decreased somewhat but not in the dramatic way Singer suggests.
155. See, e.g., USDA, ANIMAL WELFARE REP. FISCAL YEAR 2004, at 10 (2004), available at http://www.aphis.usda.gov/ac/awreports/ awreport2004.pdf.
156. Animal Welfare Act of 1970, Pub. L. No. 91-579, 84 Stat. 1560, 1561 (codified as amended at 7 U.S.C. § 2132(g) (2000)).
157. The exclusion of rats, mice, and birds from the definition of "animal" in the Animal Welfare Act was included as title X, subtitle D, section 10301, of the Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, 116 Stat. 134 (2002).
158. The exclusion is now codified at 7 U.S.C. § 2132(g) (2002). All vertebrate animals used in activities conducted or supported by the Public Health-Service (PHS) are regulated in accordance with PHS policy.
159. See OFFICE OF LABORATORY ANIMAL WELFARE, NATIONAL INSTITUTES OF HEALTH, PUBLIC HEALTH SERVICE POLICY ON HUMANE CARE AND USE OF LABORATORY ANIMALS 8 (2002)
160. See supra note 4. The United States Department of Agriculture, which enforces the Humane Slaughter Act, interprets the Act to exclude poultry, which account for the largest number of animals slaughtered for food.
161. See 9 C.F.R. § § 313.1-.90 (2006). The exclusion of poultry under the Humane Slaughter Act parallels the exclusion of rats and mice under the Animal Welfare Act (although rats and mice are covered under other federal laws).
162. See supra notes 104-06 and accompanying text. Animal advocates, led by HSUS, filed a lawsuit over the USDA's exclusion of poultry.
163. See Elizabeth Williamson, Humane Society to Sue Over Poultry Slaughtering; Suit Demands That Birds Be Killed or Rendered Unconscious Before Butchering, WASH. POST, Nov. 21, 2005, at B02.
164. HSUS argues that the present system of stunning poultry in an electrified water bath causes illness in humans through fecal contamination and increases injuries to slaughterhouse workers. The alternative proposed by HSUS is "controlled atmospheric killing," or gassing, of poultry. According to HSUS, this alternative "results in cost savings and increased revenues by decreasing carcass downgrades, contamination, and refrigeration costs; increasing meat yields, quality, and shelf life; and improving worker conditions" and "can improve worker conditions and safety, decreasing labor costs due to production line inefficiencies, injuries, and turnover from handling conscious birds." THE HUMANE SOCIETY OF THE UNITED STATES, AN HSUS REPORT: THE ECONOMICS OF ADOPTING ALTERNATIVE PRODUCTION PRACTICES TO ELECTRICAL STUNNING SLAUGHTER OF POULTRY 2 (2006), available at http://www.hsus.org/web-files/ PDF/farm/econ_elecstun.pdf.
165. Joby Warrick, 'They Die Piece by Piece; In Overtaxed Plants, Humane Treatment of Cattle Is Often a Battle Lost, WASH. POST, Apr. 10, 2001, at A01.
166. The resolution on "humane" slaughter was included as title X, subtitle D, section 10305 of the Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, 116 Stat. 134 (2002).
167. See supra note 10.
168. See FRANCIONE, supra note 3, at 190-219 (discussing welfarist changes that may represent incremental eradication of the property status of nonhumans);
169. see also infra notes 132-55 and accompanying text (discussing new welfarism and incremental change, including whether changes result in change in property status).
170. Sunstein, supra note 7, at 44.
171. Id. Similarly, David Favre argues that "[i]t is an incorrect legal analysis that the interests of animals cannot be accommodated within the legal system if they remain legal property."
172. Favre, supra note 7, at 91.
173. He states that we can accord animals "the legal respect that they deserve," id., "by dividing the concept of title into legal and equitable categories and then awarding the equitable title to the animal." Id. at n. 11. Putting aside the lack of clarity of the expression "the legal respect that they deserve," there are at least three responses to Favre's proposal. First, however Favre wants to characterize it, what he is doing is proposing limits on property ownership. It is not clear why he thinks that going about this limitation in the rather peculiar way that he proposes will be any more socially or legally acceptable would the conceptually more simple prohibitions on the use of animals that are presently available and largely rejected. Second, to the extent that the rights of "equitably self-owned" nonhumans will be shaped by anticruelty laws, as Favre proposes, nonhumans will receive little protection because anticruelty laws provide almost no protection to animals. Third, Favre also suggests that the human-nonhuman relationship be modeled on the parent-child relationship, which does not address anything more than the relationship that humans have with companion animals and would have no application to nonhumans used in other contexts.
174. Sunstein, supa note 7, at 44. Sunstein once again finds an ally in David Favre.
175. See David Favre, Equitable Self-Ownership for Animals, 50 DUKE L.J. 473, 495 (2000) ("Under our present system, full responsibility comes with ownership.").
176. See infra note 196 and accompanying text (discussing the "benefit" that nonhumans receive from property status).
177. Sunstein, supra note 7, at 43.
178. For a further discussion of Sunstein's views, see Gary L. Francione, Equal Consideration and the Interest of Nonhuman Animals in Continued Existence: A Response to Professor Sunstein, 2006 U. CHI. LEGAL F. 231.
179. Sunstein, supra note 7, at 44.
180. Robert Garner argues that the welfarist approach is not trying to show that the use of animals is morally wrong regardless of the benefits to humans. Rather, the movement is trying to show that most, if not all, of the cruel and harmful techniques currently employed on animals are unnecessary in the sense that they do not produce human benefits or that such benefits can be achieved in other ways. Robert Garner, Animal Welfare: A Political Defense, 1 J. ANIMAL L. & ETHICS 161, 167 (2006).
181. Garner claims that I accept this analysis, id., and that it is "somewhat ironic" that I do so given my criticism of Garner's defense of welfarism. GARNER, supra note 7, at 41 n.2. Garner fails to understand that my discussion of necessity concerns animal use per se and not the treatment of animals, which, as Garner correctly notes, is the focus of the welfarist approach.
182. See FRANCIONE, supra note 2, at 1-49.
183. It maybe argued that the use of nonhumans in experiments to find cures for serious human illnesses is not trivial in the same way as our other uses of animals. Necessity claims are suspect in this context as well, and I maintain that animal use cannot be justified morally even if it is necessary in some sense. See Gary L. Francione, The Use of Nonhuman Animals in Biomedical Research: Necessity and Justification, 35 J.L. MED. & ETHICS 241 (2007).
184. See Cass R. Sunstein, The Rights of Animals, 70 U. CHI. L. REV. 387, 389-90 (2003).
185. Sunstein rgues that the primary problem is a lack of standing to enforce these "rights." Id. at 391-92.
186. British lawyer Mike Radford maintains that, at least as far as English and Scottish law are concerned, I am wrong to maintain that when human and nonhuman interests are balanced, the animal loses whenever the human has a commercial interest. See RADFORD, supra note 7, at 249.
187. According to Radford, Ford v. Wiley, 23 Q.B.D. 203 (1889), a case in which a British court held that dehorning older cattle with saws violated the anticruelty law because it caused unnecessary suffering, establishes the application of a two-stage process to determine necessity. "First, it must be shown that the animal's treatment was to effect an 'adequate and reasonable object': Secondly, 'There must be proportion between the object and the means'."
188. RADFORD, supra note 7, at 248
189. (quoting 23 Q.B.D. at 210,215).
190. A closer examination of Ford v. Wiley, including other painful procedures discussed approving by the court, such as castration of animals and the severity used in the breaking of horses, provides a context for the meaning of the test that Radford regards as refuting my notion about the general interpretation of necessity. Moreover, Ford v. Wiley actually reinforces my view that suffering for economic reasons is generally considered as necessary as long as the practice in question is commonly accepted by those involved in animal agriculture. The opinions of both Lord Chief Justice Coleridge and Justice Hawkins noted that the practice of the dehorning older cattle had been discontinued in England, Wales, and most of Scotland, and was no longer an accepted agricultural practice. For a further discussioh of Ford v. Wiley and subsequent British case law holding that if an agricultural practice is commonly accepted there is no violation of the anticruelty law even if there are less painful alternatives, see FRANCIONE, supra note 2, at 61-62.
191. National Pork Producers Council, Gestation Stalls: The Facts, http://www.nppc.org/public_policy/gestation_stalls.html (last visited Mar. 19, 2007). Some welfarists argue that gestation crates are not as economically beneficial as alternative production systems.
192. See supra notes 56 and 65 and accompanying text.
193. See, e.g., FUR COMISSION USA, FUR FACTS 5 (2005), available at http:/Www.furcommission.com/resource/Resources/ FAF.pdf.
194. Sunstein, supra note 7, at 45. Owners of companion animals may regard those animals as having more than market value, and one might say that the owner regards the animal as having "intrinsic" or "inherent" value. That sense of intrinsic value, which concerns sentimental or idiosyncratic valuation by particular animal owners, is, however, different from the notion of moral value that Sunstein uses when he talks about intrinsic value.
195. See FRANCIONE, supra note 2, at 90-98.
196. Sunstein maintains that: "[i]n many domains human beings seem to be 'used,' and the relevant practices are not objectionable for that reason." Sunstein, supra note 7, at 45.
197. He argues that "[i]when you hire a plumber, a lawyer, an architect, or someone to clean your house, you are treating them as means, not as ends.",Id.
198. Although it is true that we use others as means to our ends, we are not allowed to treat them exclusively as means to ends. We can, for instance, value our plumber as a means to the end of repairing a leak. But if we do not think that the plumber is competent, we are not allowed to treat her solely as an economic commodity all of whose interests may be ignored if it benefits us to do so. We cannot enslave the incompetent plumber in a forced-labor camp; we cannot use her as a nonconsenting subject in a biomedical experiment or as an unwilling organ donor. Even if we do not value the plumber as a plumber, she still has residual value that prevents us from valuing her fundamental interests at zero. In the book that Sunstein was reviewing in the context of making these comments, I use the plumber example and distinguish between treating the plumber as a means to an end and treating her exclusively as a means to an end. See FRANCIONE, supra note 2, at 90-91.
199. See ALAN WATSON, SLAVE LAW IN THE AMERICAS (1989);
200. FRANCIONE, supra note 2, at 86-90.
201. Sunstein, supra note 7, at 44.
202. See supra note 124 and accompanying text.
203. See FRANCIONE, supra note 2, at 81-102.;
204. see also Francione, supra note 116, at 239-45 (discussing equal consideration, property status, and the interests of animals in continued existence).
205. See FRANCIONE, supra note 2, at 130-50. Bentham, who is regarded as an act-utilitarian (one for whom the right act is that which maximizes net welfare in the particular situation) was, at the very least, a rule-utilitarian (one for whom the right act is that which, when followed as a general matter, will maximize net welfare even if it does not do so in the particular situation) when it came to slavery in that he rejected the morality of slavery as an institution.
206. See id. Both Bentham and Peter Singer seek to apply the principle of equal consideration to animal interests. Although both reject human slavery, neither rejects the property status of animals, in part because both believe that animals do not have an interest in their lives and only have an interest in not suffering. As a result, neither sees a problem per se with using animals for human purposes. I, argue that sentience implies an interest in continued life and that Bentham and Singer err by linking an interest in life with reflective self-awareness or humanlike self-consciousness. The view that animals do not have an interest in continued existence also appears to be the basis of Sunstein's position that animal use per se does not raise a serious moral issue.
207. See Francione, supra note 116.
208. See generally FRANCIONE, supra note 3 (discussing the phenomenon of "new welfarism" or the view that animal rights offers no normative guidance in the short-term and animal-welfare regulation will lead to the abolition of exploitation, or to some significant recognition of the inherent value of nonhumans, in the long term). All of my critics promote a version of new welfarism.
209. See supra note 7. Modern "animal law" is also based on new welfarism and assumes that the alternative to traditional welfare is to forsake the welfare of animals now and that welfare regulation will lead to the recognition of the inherent value of nonhumans.
210. See infra note 160 and accompanying text.
211. For example, Robert Garner incorrectly states that my position is "that reforms to the treatment of animals short of abolition are not worth having." GARNER, supra note 7, at 221.
212. See, e.g., Favre, supra note 7, at 90. Favre, commenting on what he understands to be my position, states that those who criticize welfarist incremental change "possess an incorrect. understanding of property law" and that "[i]t is highly unlikely that the elimination of property status will occur in the foreseable future." Favre misses the point on a number of levels. No one maintains that property status is going to be eliminated anytime soon. The point is whether we should pursue its elimination incrementally through regulations that diminish property rights in nonhumans rather than pursue welfarist regulations that, for the most part, merely reinforce the property paradigm.
213. For a discussion of this issue, see FRANCIONE, supra note 3, at 160-62.
214. For a discussion about how incremental change as steps toward an identifiable goal has worked in another context (the victims' rights movement), and why the incremental approach that I propose is preferable to the approach urged by others to seek change in the status of nonhumans through common-law adjudication, see Douglas E. Beloof, Crime Victims' Rights: Critical Concepts for Animal Rights, 7 ANIMAL L. 19, 25-29 (2001).
215. See FRANCIONE, supra note 3, at 147-219. Indeed, it is the welfarist position,' which maintains that we ought to pursue any measure that reduces suffering, that fails to provide normative guidance because almost any measure can be said to reduce suffering.
216. See id. at 156-62.
217. See, e.g., id. at 152.
218. PETER SINGER & JIM MASON, THE WAY WE EAT: WHY OUR FOOD CHOICES MATTER 81-183 (2006).
219. See id. at 177-83.
220. See Promotional Brochure from The Culture and Animals Foundation and The Institute for Animals and Society, The Power of One: The Twentieth Annual International Compassionate Living Festival, available at http://www.animalsandsociety.org/documents/ PowerofOnebrochure.pdf (last visited Mar. 19, 2007). Regan is the author of THE CASE FOR ANIMAL RIGHTS (1983).
221. PETA, 2004 PETA Progress Awards, http://www.peta.org/feat/proggy/2004/ winners.html#retailer (last visited Mar. 19, 2007).