The following drafts are solely for the purpose of the 2025 Brooks Annual Workshop for Scholars. Please do not cite or circulate. Thank you.
Ownership and the Ecological Community
Nico Cornell, University of Michigan
An early draft of a paper that is about property law and environmental ethics. It draws on recent property theory that conceptualizes ownership as an office and connects it with the idea of ecological communities and places within those ecological communities. The paper is not squarely about animal law per se, which gives me some hesitation about workshopping it here. But the connections are obvious and the central example involves animals.
Angela Fernandez, University of Toronto Faculty of Law
Justin Marceau, University of Denver Sturm College of Law
On November 11, 2024 Vox published an article we wrote about a story with which many of you are likely familiar – the 43 monkeys who escaped the Alpha Genesis laboratory in South Carolina, a facility which supplies primates for use in laboratory research. It became the #1 Most Popular article of the day in an especially busy post-presidential election news cycle. In the article, we wrote about how the research lab arguably lost title to the monkeys when they escaped. We plan to write a law review article together delving deeper into the animal escape cases and exploring the question of what is so appealing about animal escapes even to those who are otherwise relatively uninterested in the freedom or intrinsic worth of nonhuman animals. As journalist Tove Danovich wrote in her exploration of this psychological phenomenon, prompted by the escape of a steer from a slaughterhouse in South Brooklyn: “For some reason, even people who are proud carnivores feel troubled by the idea of one of these freedom-grabbing escaped animals being sent to slaughter.” We dub these animals freedom-grabbers and propose to lay out the legal argument behind the widely-shared moral intuition that they deserve their freedom, asking specifically whether they have a right to freedom upon successful escape.
Grabbing at Freedom: Does an Escaped Animal Have a Right to Their Freedom?
Wild Individuals
Natalie Jacewicz, University of San Diego
Courts and conservation-based statutes tend to treat wild animals within a population as fungible. In practice, however, wildlife managers frequently distinguish among individual animals. These actions fall into two broad buckets. First, wildlife management policies may condition management actions on an individual animal's actions. Rather than relocating or killing all black bears, for example, Colorado wildlife officials kill only those individual bears who have "two strikes" for venturing too near humans. A uniform "rule" exists, and only those animals that break the rule are punished. Second, wildlife officials may develop different rules for different individuals. Frequently, agencies treat wild animals differently based on their genetics, behavioral traits, or group membership. That is, different rules apply to different animals, even of the same species. Sometimes agencies justify this differentiated treatment in conservation terms, as when the Bureau of Land Management determines which wild horses to round up based on coat colors or other genetic traits. Horses should be selected to remain on the range, the argument goes, based on the extent to which their genetics will lead to an overall healthy herd. In other instances, animals are singled out for special treatment because of celebrity status among the public. Thus, Grizzly 399 and her cubs were allowed to wander through town streets and near houses (actions that would have gotten other bears killed by wildlife managers) because the human community knew and liked Grizzly 399. We have reason to expect that this kind of individualized management will increase as biotracking and surveillance technology becomes more sophisticated and affordable.
My paper calls attention to the phenomenon of individualized wildlife management and examines the pros and cons of an individualized approach through the lens of personalized law. The latter is a developing field in the human context. I then suggest how statutes and courts should incorporate wildlife managers' growing ability to engage in individualized wildlife management.
Human Dignity and Animal Subordination
Ela Leshem, Fordham University School of Law
Dignity in U.S. law takes on a hierarchical meaning in a variety of legal contexts. In those contexts, dignity sometimes involves an implicit or explicit comparison between human and nonhuman animals. What it means to treat humans with dignity in those contexts is to treat them more respectfully than nonhuman animals. This legal conception of dignity, the paper argues, should trouble both animal and human rights advocates. Dignity thus construed abandons nonhuman animals to mistreatment. And it also sets up humans for mistreatment because our world of factory farming renders the relevant comparative threshold miniscule.
Someone: Humans and Animals in the Anthropocene
Bonnie Nadzam, Harvard Law School
Kristen Stilt, Harvard Law School
An assumed division between human and nonhuman animals (and most of the rest of nature, too), was baked in across most of western culture and law—baked to the point of dry earth so parched and sere, it shimmers in the distance on a record-setting hot day. And now, carrying these divisions with us, we have brought ourselves to this era that many informally call the Anthropocene, named for the profound and pervasive human impacts on planet Earth and its systems. Ironically, then, some effects of our human attempts to dominate animals and the natural world—rooted in beliefs and values that distinguish us as categorically distinct—are rendering us increasingly vulnerable to disease and natural catastrophe, and less and less able to draw a sharp line between our own lives and bodies, and the lives and bodies of those with whom we share this planet. And as effects of the Anthropocene bring humans and animals in closer and more frequent contact, increasingly in emergency and catastrophic situations, we are beginning to see more signs of awareness that humans and animals are not only ecologically but profoundly interdependent.
Arguably, the very chaos and disorder that humans sought to avoid by constructing and conceiving of a “wall” between civilization and the natural world, between humans and animals, is right at hand. The slow but persistent current of change that is emerging has been created and exposed by human hands and prompted by the progressively sharp reality of our interdependent lives. Sometimes it is compassion or empathy that makes us aware of our interdependence, sometimes, self-protection. In any case, it is undeniable that there is no safe or separate place from emerging infectious diseases, or from climate change. And this current of change is comprised of many kinds of observations, biological and ecological observations among them, that now, already, categorize in law each animal not as something—and not yet (or ever) as a person—but as someone. A someone whose sentience is recognized by the law; a someone who merits the same or similar treatment in the same or similar kinds of situations as a human. This slow-moving stream is gaining momentum and has the potential to loosen the hard, baked-in divisions between humans and animals in our legal institutions, and other institutions as well—not with a head-on collision but with both subtlety and power of slow-moving water. We aim to show in this article that this slow, persistent momentum, this slow-moving stream, has already in some cases loosened the flawed and outdated assumptions we may have seen as immutable. In ways large and small, the ground is shifting. We are reworking the terrain upon which we must navigate the 21st century with results that will most likely further develop as the realities of the Anthropocene, and what has always been our fundamental interdependence, continue to reveal themselves.
Right and Duties for Nature and Animals
Ethan Prall, Fordham University of Miami
Rights have become an important subject of dispute in environmental law and ethics. “Rights of nature” are often understood to include rights that attach to collectives like species or ecosystems, or natural objects like mountains. They have been proposed, and in some cases enacted, in different areas of law. Similar rights often have been grounded in the moral value of someone or something. However, Western environmental ethicists with few exceptions have avoided ethical approaches that recognize the moral value of natural collectives and other objects that do not have minds or individual personalities. Animals, on the other hand, have been accepted today by many ethicists as strong candidates for moral standing, and in turn, some have argued for the rights of animals. In law, conversely, many environmental scholars have been more interested in recognizing rights of nature than rights of individual animals. This creates a puzzle: should environmental law in the United States recognize legal “rights of nature” regarding natural collectives and objects, but not recognize legal “rights of animals”?
This article argues that there are different possible ethical grounds for recognizing both rights of nature and rights of animals, and that certain approaches are supportive of recognizing legal rights in both cases. However, under the Capabilities Approach developed by Martha Nussbaum, “rights for nature” and “rights of animals” can have different structures regarding to which entities human duties are owed, which affects how to think about legal rights and duties. The article also argues for the importance of recapturing the centrality of human duties toward nature in American law, rather than emphasizing the language of rights. Finally, the article also explores how duties and rights pertaining to nonhumans might work in the United States through the concrete example of rights for coral reefs: how human duties to coral reefs as valuable ecosystems might give rise to certain rights for those systems, and possibly the animals that call them home.
Domestic Predation
M.H. Tse, University of Toronto Faculty of Law
In this work, I provide the language and framework for understanding human systems of custodial animal extraction (which we now refer to as animal “farming” or “agriculture”) as a distinct form of violence I call domestic predation. Like prototypal forms of predation such as hunting and trapping, domestic predation describes interactions in which one animal extracts the bodily wealth of another living animal by force, for their own sustenance or advantage. Unlike prototypal forms of predation, however, domestic predators hold and keep other animals alive during a pre-slaughter period in order to maximize the extraction of bodily materials and offspring over time and extend it into the future.
Assessing Animal Protection Agencies
Delcianna Winders, Vermont Law and Graduate School
The project analyzes and compares the experience of animal protection agencies in different jurisdictions, including their genesis, independence, scope of authority, and effectiveness. It includes national agencies (e.g., India’s Animal Welfare Board and Spain’s General Directorate for Animal Rights), state agencies (e.g., Vermont’s Animal Welfare Division and Colorado’s Bureau of Animal Protection), and local agencies (e.g., in Bogotá and Medellín, Colombia).