Animal
Law: A New Breed of Practice
By
Fran Ortiz | The Houston Lawyer
May/June 2008
Animal law is
an umbrella term referring to the wide array of
legal issues that impact the welfare and changing
status of nonhuman animals. Like environmental law
before it, animal law is a subject that actually
existed long before it was seen as a field in its
own right, and its practitioners generally originated
from other recognized areas of practice. And like
environmental law did 30 years ago, the practice
of animal law is gaining greater legitimacy as it
becomes recognized by law schools, lawyers, and
the larger community.
Media focus
on celebrity cases over the last year has increased
recognition and illustrates the broad scope of the
subject, which covers common law, statutory and
regulatory elements, and includes issues relating
to companion, exotic and wild animals. Thus, Michael
Vick’s dogfighting conviction, Ellen DeGeneres’s
breach of a rescue organization’s pet adoption
agreement, and Leona Helmsley’s $12 million
trust fund for her dog Trouble, although arising
within different legal contexts, all fall within
the scope of animal law.
The same is
true for other animal issues that received media
focus last year. The pet food recall, for example,
highlighted for many the limited recovery available
in most states for death or injury to a companion
animal because of the animal’s classification
as property. Similarly, the video of downed cows
at a California slaughter plant issued by the Humane
Society of the United States earlier this year focused
the nation’s attention on the beef industry
and inhumane treatment and slaughter of ill cows.
Despite the
growing numbers of cases, few lawyers practicing
in the field have received any formal instruction
on the common themes that underlie animal-related
issues. However, through the efforts of the Animal
Legal Defense Fund (“ALDF”), the number
of law schools that offer courses in animal law
is growing. Over 90 American law schools now offer
such a course (up from only nine in 2000), including
South Texas College of Law, the University of Houston
Law Center, the University of Texas at Austin, and
Texas Wesleyan University School of Law. In addition,
students in 117 law schools have organized student
ALDF chapters, with many of the organizations serving
as the catalyst for the creation of new animal law
classes.
Pamela Alexander,
director of ALDF’s Animal Law Program, explains
that student interest and involvement is what accounts
for the explosion of student ALDF chapters and animal
law classes across the country, not only in law
schools but at undergraduate institutions as well.
Although ALDF collaborates to help establish a new
animal law course, she credits the students as the
primary driving force behind the movement. Her goal,
she says, “is to see an animal law course
established at every accredited law school in the
nation.”
Creating an
animal law course has sometimes been difficult,
as students and interested teaching faculty are
met with skepticism over the subject matter. Although
some see a course as merely a discussion of animal
rights, Alexander notes that the course is much
more and will depend on the instructor and the law
school. Although animal rights might be a part of
the discussion, she says, “It is the law that
is emphasized, because that is how we will get change.”
“Animal
law is exciting and challenging,” Alexander
continues, “because it intersects with traditional
areas of law. Law schools are doing students a great
service by providing animal law courses.”
Generally speaking,
animal law courses include criminal, contractual,
and estate planning issues (such as those illustrated
by the Vick, DeGeneres and Helmsley references above),
as well as issues grounded in property, constitutional
law, and statutory laws regarding animal welfare.
The course often forces students to look at traditional
laws in different ways because of the difficulties
inherent in representing the interests of animals
that are still considered property.
The current
imbroglio involving Primarily Primates, Inc. is
an excellent example of the breadth of legal issues
that one case may raise. Primarily Primates is a
primate sanctuary located in San Antonio. After
it took in nine chimpanzees retired from Ohio State
University research labs in 2006, an undercover
investigation by People for the Ethical Treatment
of Animals revealed a substandard facility, severe
neglect and animal hoarding conditions.
Aside from potential
criminal issues, Primarily Primates was faced with
a variety of other legal problems. It was first
sued by PETA for breach of its contractual obligation
to care for the animals, a case that raised the
issue of standing for nonhuman animals (later resolved
on appeal—no standing). The facility also
went into receivership after the Texas Attorney
General learned of the facility’s conditions
and only came out after settlement and restructuring.
It was forced to relocate many of its animals due
to overcrowded conditions during the receivership,
an action that has now raised issues of ownership,
as several of the sanctuaries have refused to return
custody to Primarily Primates for fear of continued
neglect.
Other cases
are instructive as well, showing how the law is
rapidly evolving in this area. For example, the
response by many states to the pet food recall was
the introduction of legislation permitting emotional
distress damages for loss of companion animals,
a complete turnaround from the prior view. Similarly,
response to the downed cow video included legislative
hearings on livestock practices and the introduction
of a bill seeking increased penalties and possible
plant shut down for statutory violations.
In addition
to seeking opportunities for class instruction,
Alexander notes that ALDF is beginning to focus
on creating opportunities for practical training
to help students make a start in this area once
they finish law school. “We see a lot of students
going to law school now specifically to represent
animal issues in practice,” she says. “The
challenge is that, when they graduate, there are
not as many full time opportunities to practice
these issues.”
With that in
mind, ALDF has created a mentorship program that
matches students with practicing animal law attorneys
so that students can learn the ropes. “We
think this is a one-of-a-kind program,” she
says.
Internship opportunities
are also available for many students interested
in animal law, including internships with ALDF itself
as well as some opportunities at the Humane Society
of the United States. In the Houston area, students
may find animal law opportunities through internships
with the Harris County District Attorney’s
office, through South Texas College of Law, and
with the Bureau of Animal Regulation and Care.
Educational
support and networking opportunities are also available
to students and practitioners alike through the
growing number of animal-related bar sections and
committees. Currently, at least ten state bar associations
and the American Bar Association’s Tort Trial
& Insurance Practice Section have animal law
sections, and sections of local bar associations
are peppered throughout the country. Included in
this number is the Animal Law Section of the Texas
State Bar (already 12 years old and with 277 members),
as well as the new Animal Law Section of the Houston
Bar Association and the Animal Law Committee of
the Austin Bar Association.
Amy Bures Danna,
Houston Bar Association member and former chair
of the State Bar Animal Law Section, indicates that
the number of Texas lawyers interested in animal
law issues is on the rise, as evidenced by the growing
number of lawyers who attend the Section’s
annual Animal Law Institute held each summer. She
notes that this increase merely reflects changes
to societal views on animal issues, which is exemplified
by the country’s negative reaction to the
Michael Vick dogfighting ring. “A decade ago,”
she says, “the reaction from the public would
likely have been much more indifferent. . . . Society
is changing, and the number of lawyers in the field
simply reflects that.”
Danna also points
to the growing number of lawyer and non-lawyer members
in animal-related groups such as the Humane Society
as proof of the growing concerns for animal welfare.
Membership in
such groups is indeed on the rise. The Texas Humane
Legislation Network (“THLN”), for example,
has seen its membership grow from a mere 30 individuals
in 1975 when it was first formed to over 4,000 members
today. As the only non-profit lobbying organization
devoted to animal issues in Texas, the group has
made significant advances in state animal legislation
over the years, including improved animal shelter
and euthanization standards, shelter requirements
for pre-adoption sterilization of dogs and cats,
authorization for civil seizure and dispossession
of cruelly treated animals, and prohibitions on
dog fighting, canned hunts, and horse tripping.
Further indication
of the increasing pace of change is THLN’s
success during the last legislative session, with
the organization seeing the passage of eight animal-related
bills. Significant legislation included provisions
that require the inclusion of certain animals in
natural disaster evacuation plans, increase the
number of counties authorized to regulate roadside
animal sales, limit dog-tethering, enhance dogfighting
and spectator penalties, and impose stricter animal
cruelty provisions.
Recent companion
animal statistics also suggest a growing societal
interest in animal welfare. Currently, one-third
of American households are home to at least one
companion animal and nearly half those homes deem
their animals to be a part of the family. With pet
expenditures on the rise (total expenditures are
estimated at $43.4 billion dollars for this year
alone), lawyers interested in animal law may find
more clients knocking on their doors.
America’s
love for animals has already created opportunities
in other areas, notably the insurance industry with
its pet medical insurance policies and, most recently,
Progressive Insurance’s new pet injury coverage
under its automobile policies. According to ALDF’s
Alexander, more lawyers are encouraging their law
firms to include animal law as a practice area,
and larger firms are approaching ALDF seeking pro
bono cases. She notes, however, that some lawyers
have to overcome resistance within the firm by those
who do not see the subject as a legitimate practice
area.
Danna, in addition
to teaching Animal Law as an adjunct professor at
the University of Houston Law Center, practices
as an associate at The Clary Firm, P.C. Until recently,
she took animal law cases on the side as time permitted,
representing and consulting with charitable organizations
such as the Austin German Shepherd Dog Rescue. However,
says Danna, her firm has recently incorporated animal
law into its practice, taking advantage of the practice
potential created by changing societal trends. She
foresees focusing on pet trust work and other estate
planning options “as people are quite interested
in assuring themselves of the safety and comfort
of their animals if they become disabled or die
unexpectedly.”
Danna believes
that animal law will continue to be a growing business.
“Animal law reflect[s] the value that people
place on animals. If society continues to demand
increasingly better treatment for animals, our legal
system will reflect the public demand. And if the
amount spent on pets is any indication of society’s
valuation, the practice of animal law will do nothing
but continue to expand dramatically.”
So, lawyers
take heed. If the dog barks, answer the door.
Fran Ortiz is
Presidential Research Professor and Professor of
Law at South Texas College of Law. Professor Ortiz
teaches Animal Law at South Texas College of Law,
and she is a council member with the Houston Bar
Association Animal Law Section and a director with
the Texas Humane Legislation Network
Houston
Bar Association Section Focuses on Animal Law
In 2007, three
busy lawyers – Alison Smith, a trial lawyer
at Haynes & Boone; Belinda Smith, a prosecutor
in the Harris County District Attorney’s Office;
and Clarissa Kay Bauer, an attorney with the Harris
County Attorney’s Office – recognized
a need within the Houston Bar Association. The three
petitioned the Houston Bar to establish its first
Animal Law Section. The section’s purpose
is to “promote the understanding of laws,
regulations, and court decisions dealing with animals,
as well as to provide networking opportunities for
members.” In its first year, the section sponsored
CLE programs on dog fighting, the basics of animal
law, recent legislation involving animals, and pet
trusts.
At its holiday
party, the section honored SNAP (Spay-Neuter Assistance
Program) and PetSmart Charities for their support
of local spay and neuter programs. The section has
exciting future plans, including matching pro bono
attorneys with local animal rescue organizations
needing legal counsel.
Clarissa Kay
Bauer, current chair of the section, described her
reasons for pushing for the bar section: “I
became involved in animal law years ago through
my work as an assistant county attorney. I handled
the civil seizures of cruelly treated animals. The
animals were typically neglected or abused family
pets that I took from their owners pursuant to Court
order. It proved to be the most gratifying legal
work I have ever done because the animals were suffering
so badly, and I was able to place them with the
Houston SPCA or Houston Humane Society for future
adoption and a better life.”
The HBA Animal
Law section is eager to gain new members. Please
see the section’s page on the HBA Web site,
www.hba.org, for more information and contact numbers.
