Fernandez on Animals as Property (undated)

Video: Angela Fernandez, “Animals as Property, Quasi-Property or Quasi-Person.” Animal Law Fundamentals, The Brooks Institute. An associated paper (also (and annoyingly) undated) is available here. 

• History: 19th century animal welfare statutes; 1960s-70s animal rights; 1990s animal law discipline 

• Pierson v. Post (1805) is often the first case taught in a property law class in the US. It centers on whether a hunter in hot pursuit of a fox should "own" the fox, or whether a "saucy interloper" could apply the finishing touches to the fox's life and make off with the fox's corpse. Sadly, the murder of the fox the fox's own interest, is often ignored.

• Professor Fernandez was drawn to animal law (from her pre-existing interest in legal history) by the neglect of the fox's interest in Pierson v. Post. She soon learned that much of the law that ostensibly protects animal interests is of a “paper tiger” sort, where the law sounds tough, but is often toothless – like exempting fish, easily the modal animal as a human-food source, to be exempt from animal protection laws.

• Animals are treated as property, not as persons, in the law, and altering this situation seems a promising method for improving the treatment of animals. Professor Fernandez cites Gary Francione on ethical personhood and Stephen Wise and the Nonhuman Rights Project on legal personhood.

• But the argument for legal personhood is not landing well, in either common law or civil law jurisdictions The habeas claim has only worked in civil law Argentina, for the orangutan Sandra.

• Indigenous legal systems offer the best environment for animal personhood, and indeed, often view animals as possessing personhood. 

• The high stakes of recognizing animal personhood harm its chances; but, we can evade a personhood/property binary. Note the current, existing inroads into a pure version of animals as constituting property: anti-cruelty laws, plus animal interest treatments in lots of other legal areas, such as divorces, wills and trusts, emotional damages, and domestic abuse (where shelters will allow people to bring their pets, for instance).

• In reality, animals already are quasi-property, and they also possess some subset of personhood rights. The term quasi-property seems to be better suited than similar concepts that have been proposed, such as living property or semi-property, in part because the term "quasi" itself is frequently used in the law for in-between states, as in quasi-contract, nd in part because it allows for flexibility over time and across species.

• From the personhood (as opposed to the property) side, quasi-personhood works well, too.  The idea of quasi-personhood is also longstanding in law, including its application to enslaved people in ancient Rome.

• It is counterproductive (and triggering for many humans) to force animals to be considered as legal persons: use quasi-persons instead, to sidestep the outrage and better capture the rights that are sought.

Francione and Charlton (2017), "Animal Rights"

Gary L. Francione and Anna E. Charlton, “Animal Rights.” Chapter 1, pages 25-42, in The Oxford Handbook of Animal Studies, Linda Kalof, editor, 2017.

• The term “animal rights” is not used in a consistent fashion; here, a right is “a way of protecting an interest [p. 25]” 

• Rights protect interests even when the consequences of protecting that interest might not be desirable -- though rights need not be absolute, they can give way to extreme consequences.

• Animals traditionally have been “things,” and mistreatment was bad if the mistreated animals were someone else’s property, or if such behavior might cascade to direct human harms.

• Francione and Charlton suggest that any balancing of interests will always shortchange animals, as long as they are considered property. 

• Some early animal rights activists include: Lewis Gompertz (1784?-1861), an SPCA founder, author, and vegan; Henry Shakespear Stephens Salt (1851-1939), author of Animals' Rights: Considered in Relation to Social Progress (1892); the Vegan Society (1944) (including the word “vegan,” from Donald Watson and his (future) wife Dorothy); and the Oxford Group, coalescing in the mid-1960s.

• Singer's review of the Oxford Group's book helped to publicize animal issues. But Francione and Charlton's abolitionism differs considerably, in their view, from Peter Singer’s utilitarian approach. Singer "clearly regards animal life as having less value than human life [p. 32];" so, he leaves room for allowing human interest to almost always trump animal interests.

• Further, Singer is a proponent of “so like us” (in Martha Nussbaum's phrase) thinking, in that he believes that the genetic and cognitive similarity between humans and great apes suggests that primates "deserve greater legal protection than other nonhumans [p. 32]." 

• Singer also supports animal welfare (as opposed to animal rights) and single-issue causes (like cage-free eggs), and he ignores the property issue that is central to Francione and Charlton-style abolitionism.

• Tom Regan, the author of The Case for Animal Rights (1983), comes close than does Singer to abolitionism, and his book is really the impetus for modern animal rights (as opposed to welfare), in that the rights do not give way when overbalanced by bad consequences. For Regan, animals are “subjects of a life,” with equal inherent value to humans.  We need to respect that inherent value, and cannot use animals solely as a means to our ends; thus “institutionalized exploitation” must be abolished. 

• Francione and Charlton diverge from Regan with respect to the lifeboat case. Regan maintains that "if we are in the proverbial lifeboat with a dog and a human and have to decide whether to throw out the dog or a large number of dogs or the human, the harm suffered by the human will be worse than that of any of the dogs because a human has more 'opportunities for satisfaction' than a dog does, so death is a greater harm for the human [p. 34]." But this exception could swallow the rule, and allow institutionalized exploitation in due to qualitatively different values of human versus animal lives. 

• “The abolitionist approach rejects all animal use [p. 34].” Why? Animals matter morally, so they cannot be mere means to our ends, and hence, cannot be property. Therefore, all institutionalized exploitation of animals must end. 

• Alternatively (but equivalently and without invoking rights), we can’t impose unnecessary suffering, while the common uses of animals for our pleasure impose harms without necessity. 

• A potential exception is the use of animals for medical advancements, but even this cannot be justified if we would not be willing to use “similarly situated humans [p. 35].” 

• Abolitionists don’t support reforms for better conditions for animals, like cage-free initiatives. These types of reforms wrongly suggest that there is a humane way to exploit animals, and might perpetuate such exploitation. For similar reasons, abolitionists do not support “single-issue” campaigns, like fur bans. 

• The way to promote the goal of eliminating human exploitation of animals is through non-violent vegan advocacy. 

• As with Bentham, for abolitionists, sentience is the only condition: any sentient being cannot be used as property for our purposes. 

• In practice, animal welfare laws only rule out economically inefficient procedures – they forbid unnecessary suffering, while accepting customary suffering within industries that are themselves unnecessary. 

Singer, "All Animals Are Equal...," from Animal Liberation Now (2023)

Peter Singer, “All Animals are Equal…” Chapter 1, pages 1-29, in Animal Liberation Now, New York: Harper Perennial, 2023. 

• Almost half a century on from the publication of Animal Liberation, Peter Singer offers a major update in the form of Animal Liberation Now.

• Start with humans, and the common (but factually false) claim that all humans are equal. “The principle of the equality of human beings is not a description of an alleged actual equality among humans: it is a prescription of how we should treat human beings [p. 3].” 

• “The basic principle of equality does not require equal or identical treatment; it requires equal consideration [p. 2].”

• “Concern for the well-being of children requires that we teach them to read; concern for the well-being of pigs may require no more than that we leave them with other pigs in a place where there is adequate food and room to roam freely [p. 3].” 

•  The principle of equal consideration of interests is the basis for the condemnation of sexism, racism – or speciesism (pages 3-4).

• What quality is required before animals “count” in calculating overall well-being? Jeremy Bentham answers in the form of a series of questions: “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?” [From note 122 in chapter 17 of Bentham’s 1823 An Introduction to the Principles of Morals and Legislation.]

• The argument for equal consideration of nonhuman animal interests might be made in terms of “rights,” but they are not fundamental (for a utilitarian like Bentham or Singer): rights are there to reduce suffering and increase well-being (things that are fundamental) (p. 7).

• How we feel about a given “unit” of suffering should be independent of the species of the animal that is suffering “sentience… is the only defensible boundary of concern for the interests of others [p. 7].” 

• Notice how we grant equal consideration to the interests of human infants, or severely disabled people – even if they are not rational or self-aware (p. 8).

• “Most human beings are speciesists…. ordinary human beings – not a few exceptionally cruel or heartless humans, but the overwhelming majority – are complicit in the continuation of practices that thwart the most important interests of members of nonhuman animals in order to promote far less significant human interests [p. 9].” 

• We are not certain that other people possess consciousness or can experience pain – but that doesn’t stop us from acting as if they do (p. 10). 

• The best evidence we have is that many nonhuman animals are sentient. The evidence comes from neurobiology, from aversive behaviors and responses to painkillers, from biological markers… 

• Parents can understand their infants even before the infants can speak – and many human companions to animals can do likewise.

• Most fish seem to be sentient. We are less sure about sharks and rays. Crabs, lobsters, octopuses, and other invertebrates also appear to be sentient. Insects? 

• Treating one human badly (in a way that is publicly known) can inspire widespread fear, but not so for an animal – so that is a reason, if bad treatment is required, to prefer to treat the nonhuman badly (p. 21). But note that the same reasoning means that it is preferable to mistreat profoundly mentally disabled people than their non-disabled con-specifics (p. 22).

• For policy guidance now, we don’t need precise information on the comparative suffering of humans and animals – the pain imposed on animals for the slight benefit to humans is unjustifiable (p. 22). 

• We also do not need to know the precise conditions under which killing is justified to know that factory farming and other animal abuse is wrong. 

• Most people who hold that human life is sacrosanct have no problem with killing animals – this is speciesist (p. 24). 

• We should generally avoid eating animal products because of animal suffering, not because of animal death (p. 28).

Notes on The Atlantic Article by Annie Lowrey on the "Radical Vegans" of Direct Action Everywhere (DxE)

 Annie Lowrey, "Radical Vegans are Trying to Change Your Diet," September 20, 2023, The Atlantic. 

• From the opening paragraph: "Everything, everywhere in this farm for 'free-range' chickens was covered in excrement."

• Calling a factory farm a farm is to employ a misnomer.

• DxE supports a Constitutional amendment to grant nonhuman animals legal personhood.

• Lowrey is a vegan: "I believed in DxE’s mission. About its tactics, I wasn’t so sure." She details the personal and social depredations of being a vegan, which is "exhausting, abstemious, weird." 

• The blossoming of animal rights activism post-Animal Liberation was curtailed in the 21st century by legal suppression and limited success. Incrementalism, such as promoting cage-free eggs or gestation crate bans, did make some progress. But animal exploitation continued and the amount of such exploitation globally expanded.

• Wayne Hsiung, a co-founder of DxE, along with others, looked into the theory, practice, and history of social change. Non-violent direct action like boycotts and sit-ins seems to be a key component in a winning reform movement. 

• DxE hopes to turn vegans into activists, in an effort to meet the critical mass that makes social change likely. Their goal is to end animal exploitation quickly, within a generation: here's their roadmap. Their tactics include low-risk activities like protests, to higher-risk strategies like open rescues and working undercover.

• Lowrey describes the DxE 2021 protest at a slaughterhouse and factory chicken farming operation, operated by Foster Farms -- she was there, covering the event as a journalist.

• The critical mass of activists isn't enough, Lowrey argues. In addition to the committed vanguard, you need tons of tacit supporters. You start with the tacit group to recruit the activists. The opposite approach -- have a vanguard but little support beyond it -- will not work in achieving reform goals.

• DxE remains small, however; PETA is much larger. DxE's tactics seem to be a turn off even for many vegans, and some people consider it to be a cult. 

• Will DxE tactics help to bring the median voter, an omnivore, to their side? "There’s a big gap still between your average animal-loving American, who wants the government to ensure the welfare of the cow in her burger, and your average animal-rights protester, who wants to grant that cow constitutional rights."

• Maybe the animal activists will win due to causes related to, but not directly concerning, animal welfare, such as climate change or cultivated meat.

• Radical vegans often are annoying and have little prospect of achieving their goals -- they are also right, that the horrors of factory farming are unspeakable.

On the Supreme Court Case, National Pork Producers Council v. Ross, May 11, 2023

California's Proposition 12 effectively bans gestation crates by requiring sows to receive at least 24 square feet of space. Gestation crates have been illegal in California for almost a decade, but Prop 12 applies to sales (in California) of (whole, uncooked) pork produced elsewhere, not just in California – and it is this extra-state application of the California rule that lies at the crux of the Supreme Court case, National Pork Producers Council v. Ross (pdf).

The case was at the Supremes to reconsider the lower courts’ decision to grant a motion by California (Ross) to dismiss the case. Had the Court ruled against California, presumably the case would have been remanded back to lower courts to hold a trial looking at the merits of the Producers Council's claim that Prop 12 violates the US Constitution. But in what was certainly a surprise to many Court watchers, the Supremes sided with California, and hence the previous dismissal of the case is upheld. 

It was a very close call! Five justices (Gorsuch, Thomas, Kagan, Sotomayor, and Barrett) voted to uphold the dismissal – but no more than four agreed as to a reason for their vote. Gorsuch, Thomas, Sotomayor, and Kagan all agree that the petitioners had failed to allege substantial harm to interstate commerce, and hence that the dismissal was proper. Three justices, including once again Gorsuch and Thomas, but this time accompanied by Barrett, believe that the applicable legal test, known as Pike balancing thanks to a previous case, cannot be applied to Prop 12, as the costs and benefits that it implicates are incommensurable; that is, the dismissal is appropriate because the balancing test is beyond the competency of the courts.

Meanwhile, four justices (Roberts, Kavanaugh, Alito, and Jackson) favored sending the case back to the lower court, arguing that the district court had erred in finding that the pork producers had not managed to allege a significant burden on interstate commerce. 

The Supremes were unanimous on one point: the far-reaching claim of the Pork Board – that there is an "almost per se" rule that state legislation involving external costs is a violation of the Dormant Commerce Clause – is incorrect; see footnote 4, p. 27, in the opinion of the Court. 

The case evoked five opinions in toto: (1) Gorsuch writing for the Court (for the most part); (2) Sotomayor (joined by Kagan) (substantial harm not shown); (3) Barrett (incommensurable costs and benefits); (4) Roberts (joined by Alito, Kavanaugh, and Jackson) (Pike balancing can and should, according to our previous jurisprudence, be undertaken); and (5) Kavanaugh. Justice Kavanaugh's partial dissent provides a roadmap for overturning Prop 12-type regulations in the future. Kavanaugh notes that six justices uphold the Pike balancing test as good law. So future litigants, do a better job (or convince the Court to believe you did a better job) at alleging substantial costs, but also consider using other Constitutional doctrines, not the Dormant Commerce Clause, to bring your challenges to unfriendly (to you) but non-discriminatory state laws. (Thomas and Gorsuch are no fans of the Dormant Commerce Clause, which has no explicit textual basis in the Constitution.) Try the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause instead, Kavanaugh suggests.

I'm pleased with the result, though not pleased with the Kavanaugh opinion and with Justice Jackson's choice to not join the majority. I recognize that the two reasons seized upon for upholding the dismissal, incommensurability and a failure to allege significant harms, are rather weak reeds. Courts balance incommensurables all the time, it is a major element of their job. The failure-to-allege-significant-harms view is more defensible, in my opinion, but one that might be overcome with better lawyering, as Justice Kavanaugh suggests. Down the road, I expect that the Court will have to decide whether better conditions for animals are worth the costs that are imposed on out-of-state producers (though only if they choose to continue to sell in the state with the higher welfare standards), and the opinions in National Pork Producers Council v. Ross lead me to think that there is a pretty good chance that the animals will not win. I find the Roberts and Kavanaugh opinions to be pretty devoid of empathy for the pigs! On the other hand, Justice Gorsuch did display a soft spot for animal welfare, or at least that is how I read pages 2 through 4. 

My favorite phrase appears on page 21 of the opinion, when Justice Gorsuch points out that Congress has the power to to adopt rules for interstate commerce, so perhaps that is the right avenue for the Pork Producers to pursue: "it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street." Admittedly, I fear that in the upcoming Farm Bill, Big Animal Ag will make headway convincing Congress that we need to allow worse treatment for our animal cousins.

Related references from October 2022:

Kenny Torrella at Vox lays out the case prior to the oral arguments at the Supreme Court.

Law professors Mariann Sullivan and Michael Dorf, in episode #89 of the Animal Law podcast, explain the legal niceties shortly after the oral arguments. 

Related references from May 2023:

Justin Marceau and Doug Kysar at Vox.

Sullivan and Dorf return to Animal Law!

Castelló (2022) on Aussie Wild Animals

Pablo P. Castelló, “A Strategic Proposal for Legally Protecting Wild Animals.” Journal of International Wildlife Law & Policy 25(2): 103-134, 2022.

• This article looks at how wild animal interests might be protected under the Australian Constitution. Its argument builds on Donaldson and Kymlicka: animals need rights to self-determination, individually and communally. So Castelló takes as a starting point the notion that wild animals have interests and deserve some fundamental rights.

• One advantage of providing fundamental rights is that it makes backsliding, retreating on the rights of wild animals, more difficult.

• The approach here is intended to pragmatic, keeping (Australian) political feasibility in view.

• Currently, a division between wild and domesticated animals reaches Aussie common law through roots in Roman law: wild animals are things that can become some human’s property through appropriation.

• “…members of endangered species have strong protections under Australian law [p. 107].” Many wild animals lack similar protection.

• Currently, wild animals can be hunted, can be domesticated (into human property) and/or confined, or be killed if they are viewed as threats.

• In the author's proposal, individual wild anymals and their communities will have rights to political representation; to not be property; to territory; and to self-determination. They, and their ecosystems, are protected against human harm and activities.

• Self-determination is meaningless without territory (p. 109), and anymals need habitats protected against human-induced harms to survive.

• The proposed self-determination is internal: anymals do not have the right to secede, for instance. A similar form of internal sovereignty currently applies to some Australian indigenous peoples.

• Self-determination precludes being someone’s property. Hunting, capturing, or domestication are inconsistent with a right not to be property; nor could wild animals be sold. 

• The right to political representation requires some humans to serve as proxies.

• Castelló proposes a new category, “legal animalhood."

• Horses were brought to Australia in 1788; wild horses can trample the individuals and habitats of smaller species. Should the horses be culled to protect other anymal habitat? Better to nudge the horses away – and such nudges (as opposed to killing) are required to respect the self-determination of wild horses.

• To be a wild animal with the rights suggested, you must live in a Wild Animal Territory and participate in a Wild Ecosystem. Much of Australia (40%) would qualify as a Wild Animal Territory – and such a designation would hold minimal impacts on humans, as these areas are thinly populated by humans.

• Even now, the existing category of “Territory” in Aussie law does not require that inhabitants receive parliamentary representation. 

• Territories in which there is an element of sovereignty for indigenous peoples would not be required to become Wild Animal Territories.

• An animal who wanders out of a Wild Animal Territory would lose their status of legal animalhood.

• Fishing is popular in Australia, so for practical reasons, marine animals would not benefit at first from legal animalhood.

• In some property rights alternatives to "legal animalhood," the rights are easily infringed, and hunting, for instance, would still be permitted -- but not for wild animals within their territories under the author's proposal.

• Alternative legal approaches to ecosystems do little to protect the interests of individual anymals – they are not centered on self-determination.

• The “new conservation,” an econ-style environmental approach, takes it as a given that anymals are resources to be consumed or managed by humans.

• Castelló's approach, however, does share the spirit of the ecocentrist vision of Nature Needs Half.

Javanaud (2022) on the Ethics of Using Horses for Recreation

Katie Javanaud, “The Ethics of Horse Riding, Sports, and Leisure.” Journal of Animal Ethics 12(2): 158-171, Fall 2022. 

• After cruelty towards a horse in the 2020 Summer Olympics was brought to light, the pentathlon event dropped equestrian jumping as one of its five legs. (The 2020 Olympics were moved to 2021 because of the pandemic.) Also in 2021, the BBC broadcast a documentary, The Dark Side of Horse Racing, made clear that the abuse of race horses was a common occurrence.

• "Only through acquaintance with practices commonly found in these settings [everyday situations like rising schools and livery yards], can we begin to challenge and to change dominant attitudes and narratives which portray horses as commodities, objects, and instruments for human entertainment or use [p. 159].” 

• Abolitionism traces animal abuse to the property status of animals. Being a benevolent master to an enslaved animal is still to operate in an unethical system.

• But can’t a dog (or a horse?) be a family member and well-treated even if “property” in the law?

• Legal personhood for anymals would eliminate any treatment that was not in the animal’s best interest. For horses, personhood would rule out racing and jumping competitions.

• But can we make these competitions better before they are banned? Are welfare-improving moves delays, or assurances against backtracking (p. 162)? Can informing and educating humans about their similarities' to anymals serve as a palliative strategy?

• Some human/horse interactions (even within the human leisure realm) appear to be mutually beneficial; nonetheless, in the current environment, horse interests are frequently sacrificed to rider interests. 

• British riding schools are woefully underregulated. Horses are overworked and overburdened; inexperienced riders and the horses have little opportunity to bond pre-ride; schools often foreground ease for the human riders: jump-on, jump-off.

• The Donkey Sanctuary has helped adopt better regulations for donkeys – daily and weekly time off, weight restrictions, and so on. "It is time similar legislation was enacted to protect other equines [p. 164]."

• Spacious group housing is best for horses; better vet care and retirement conditions are requisite.

• Competitions lead to pushing horses to or beyond their limits. Horses are transported to a new area, and surrounded by unfamiliar horses and humans. Some competitions do not provide sufficient protective gear and veterinary care for the horses. 

• Horse parades are judged based on qualities that humans find appealing; these qualities don’t align with horse wellbeing.

• Livery yards which board and sometimes rent horses also are under-regulated: bad conditions can persist for years. Horses can suffer from a lack of exercise and companionship, along with poor nutrition.

• Horses in livery yards can develop stereotypic behaviors, which then are responded to as if  they are the fault of the horses ('stable vices'). 

• Good livery yards are consistent with horse flourishing. 

Porcher (2017), "Animal Work"

Jocelyne Porcher, “Animal Work.” Chapter 16, pages 302-318, in The Oxford Handbook of Animal Studies, Linda Kalof, editor, 2017.

• Besides the more obvious ones, working animals include “rats who detect landmines, vultures who find bodies on mountains, and cetaceans who help in climate studies [p. 303]”

• The notion of "natural behavior" for domesticated animals is misplaced. Effective animal workers need recognition, though this need is generally neglected. 

• “We owe an immeasurable debt to domestic animals that we do not seem to have any intention of honoring [p. 303]”

• Both abolitionists and high-tech folks (behind animal-free foods) are seeking a world without domestic animals -- are we trying to reject our own animal nature?

• Animal work can be mutually rewarding, and can co-construct our identities; for anymals, work is important, but it is not about production. Our pets work.

• Anymal activity (like beavers building dams) is not work (in the author’s sense) unless it aims to make the world more habitable both for the anymals and for humans (p. 307).

• Human or anymal work is not just drudgery when its outcomes are judged to be useful by the hierarchy and beautiful by peers – again, social recognition is central.

• Farm animal death greatly complicates the “working” lens -- a complication that doesn't arise in other sectors.

• In anymal work, humans and anymals must successfully engage in inter-species communication (p. 311).

• Affection is needed for successful animal work, but humans often need to keep affection in check.

• Cooperation (and hence confidence) is indispensable for successful anymal work; rules and their infringements are negotiated.

• The anymal capacity to co-create and alter the rules makes the work interesting for them (p. 313). 

• But work isn’t play, as one can always stop playing.

• Anymals understand when work is over (p. 314).

• Anymals want to give pleasure to their human partners, and vice versa – they like connection, it is a part of recognition.

• Better retirements for working anymals are a neglected element of recognition.

• Affection and death are the elements of (large-scale) animal work that are not a part of human work.

Simar Bajaj in The Guardian on Pig-to-Human Heart Transplants

Simar Bajaj, “Pig to human heart transplants are the future. Are we ready for it?” The Guardian, August 4, 2022.

• In 1984, poor Baby Fae lived only 21 days after receiving a baboon’s heart. Interest in xenotransplantation shifted towards pigs…

• … that conveniently are not covered by the Animal Welfare Act. Pigs are economically convenient, too, as organ sources, by growing quickly and having large litters.

• On an operating table, pig chests look remarkably like human chests!

• In 2022, a (human) patient lived for two months after receiving a transplant of a pig's heart. 

• The (accepted?) use of pigs for food can become an argument that it is ethically fine to use them as organ manufacturers.

• Revivicor uses CRISPR to create genetically-modified pigs. They are raised without their moms and in a sterile, indoor environment. 

• Pigs and humans are genetically close, sharing 98% of their genes; for Revivicor xenotransplants, 4 pig genes are knocked out, 6 are added.

Caballero (2022) on Xenotransplants

Arnulfo Caballero, “Sin or Science: The Legal and Ethical Implications of Growing Human Organs Inside of Pigs.” Animal & Natural Resource Law Review XVIII: 239-265, August 2022.

• The development of CRISPR eases transgenic engineering – one result is the AquAdvantage salmon.

• CRISPR makes it easier to produce hybrids (like mules) and chimeras (mosaics, not blends, like the Geep)…

• …so we might be able to grow a human organ inside a pig.

• Many Americans are in dire need of a heart or kidney transplant, but do not receive one in a timely fashion. Xenotransplants, using pig organs to place into humans, usually result in the organ being rejected by the human host. Genetically-modified pigs can reduce this rejection problem.

• Chimeric pigs can produce actual human organs; presumably such organs are less likely to be rejected after transplant than are standard xenotransplants.

• Does the Animal Welfare Act apply to pigs used for making human organs?

• The FDA has oversight over CRISPR-related therapeutics, exercised through the Center for Biologics Evaluation and Research.

• GMOS are patentable in the US – but patentability might not extend to complex ge lifeforms (such as minotaurs (p. 257)?) involving human DNA.

• 3D printing to the rescue (of the pigs)? An organ recipient’s own cells could be used to generate the 3D printed organ!

Brandon Keim in the New York Times (2023) on Lab Animals

 Brandon Keim, “What Do We Owe Lab Animals?” The New York Times, January 23, 2023 (updated, January 24, 2023)

• In debates, people tend to be "for or against" the use of non-human animals in research. But perhaps we could "give back" to research animals or their kin for their sacrifices. 

• That is, could we add a fourth "R" -- repay -- to the traditional three of replace, reduce, and refine?

• One route towards repayment (and one that sometimes is employed today) is to provide excellent conditions for animals after they have been research subjects, perhaps by placing them in sanctuaries or adopting them as pets. 

• For animals who do not survive their use in research, such ex post payback schemes are not available. Nonetheless, some research centers do memorialize animals who gave their lives in experiments. 

• And though the sacrificed animals cannot be compensated, aid to their living conspecifics -- donating to a sanctuary, for instance -- could be an alternative. 

• Another route (perhaps a subset of "refinement,") is to fund better living conditions for lab animals. "Some experts offered that a portion of drug revenues or research grants could be earmarked for this purpose."

• Subsidizing animal-free testing methods -- replacement -- might also be a way of  giving back, one that holds the potential to eventually end the exploitation of animals for research. 

Sonia Shah in The New Yorker (2023) on Free-Range Lab Mice

 Sonia Shah, “The Case for Free-Range Lab Mice,” The New Yorker, February 18, 2023.

• The subtitle is "A growing body of research suggests that the unnatural lives of laboratory animals can undermine science." [In an unwise attempt to appear more particular than The New Yorker, let me mention that I usually balk at the phrase "a growing body of research," for multiple reasons that will remain undisclosed for the time being.]

• This excellent piece of journalism opens with a tale of a 2006 false negative, where an experimental drug that was safe at high doses for rodents and monkeys proved life-threatening at much lower doses for humans.

• For new drugs, the FDA requires tests on (two species of) anymals prior to human trials. Most of the drugs that pass the animal tests fail for humans with respect to efficacy, while some prove toxic to humans.

• Most (some 88%), it seems, of the drug tests conducted on anymals cannot be replicated successfully; that is, it is not just psychology and behavioral economics that is facing a replication crisis.

• Lab experiments around the globe are undertaken on some 120 million rats and mice annually.

• More on replicability: the same animal experiment conducted in multiple labs can have different results. The results can differ based on the specific diet of the lab animals, their housing conditions, smells, the gender of researchers, … and just about anything else.

• For decades there have been efforts to produce genetically standardized animals, to ensure research results come with reduced noise from individual animal idiosyncrasies. This effort has not led to the expected research improvements: there is higher variance in drug effects with near-identical mice than with a broader mix. Further, there is lots of variance even among “identical” mice with respect to their basic physiology.

• The standard lab housing of rodents makes them sick, pessimistic, sleepy… "Imagine a study in which subjects are chronically cold, sleep-deprived, inbred, and held captive in cramped conditions. If the subjects were human, the scientific establishment would dismiss such a study as not only unethical but also irrelevant to normal human biology. Yet, if the subjects were non-human, the study could be treated as perfectly valid."

• Since humans are "free-range," it might be that the best animal models also are free-range -- and this thought has led to some researchers now testing lab mice that have been released in the wild, and comparing the results with their unfree brethren.

LaFollette (2011) on Animal Experimentation

Hugh LaFollette, “Animal Experimentation in Biomedical Research.” Chapter 29, pages 796-825, in The Oxford Handbook of Animal Ethics, Tom L. Beauchamp and R. G. Frey, editors, Oxford University Press, 2011. 

• The Common View: animals matter, but we (humans) can use them for our purposes when the benefit to us is significant.

• Lenient Views (animals barely matter) and Demanding Views (animals matter a lot) also exist – and for these, the potential benefits to humans are essentially irrelevant: the Lenient view allows animal exploitation for trivial human benefits, and the Demanding View forbids animal experimentation even for large human benefits.

• The Historical View was an extreme form of the Lenient View, one in which animals were essentially things, like rocks.

• Almost everyone now believes that it is wrong to cause an animal unnecessary pain, and that animal lives are valuable to them.

• For many people, these various starting points lead to a consideration of balancing costs imposed on animals with benefits to humans -- but some animal advocates suggest that such a balancing is unethical.

• The Argument Supporting Experimenting on Animals: (1) the research works, we can generalize from the anymals to humans; (2) animal experiments have been essential historically for medical advances; and (3) scientific methodology (controlled experiments and the need for “intact systems,” not just a hunk of cells) bolsters claims (1) and (2).

• There's an information bias: we hear about the seeming successes but not about the failures, the blind alleys we have been led down by inappropriate animal models.

• The similarity problem is the question of whether the animals condition is sufficiently like the human condition being examined. Given similarity, the inference problem is whether we can draw reliable conclusions about humans from the animal experiments. [These problems to some extent parallel internal and external validity concerns.] Much animal experimentation fails similarity or inference.

• When animal experimentation is presented as a choice something like choosing between the life or your baby and the life of your dog, the dog will not win. But the actual choice we are faced with is not between your baby and your dog – it is the institution of animal experimentation that is in the balance. 

• The harm we do to animals in experiments is present and real; the claimed benefits are down the road and uncertain. Maybe researchers have special obligations to those future humans down the road – but they also have special obligations to the captive animals in their labs.

• Would we use the “balancing test” in considering whether to experiment on nonconsenting humans? Isn’t this inconsistency a devastating counter to the “pro” case for animal experimentation?

• Speaking of inconsistency, there is the basic one of needing anymals to be similar to humans to scientifically justify experimenting on anymals, but not similar to humans to morally justify experimenting on anymals. [Peter Singer, for one, noted this paradox in 1973.]

• The fact that animal experiments might have value to humans is not in itself dispositive. More telling is the question of whether those benefits are procurable in ways that do not involve animal experiments.

Contreras and Rollin (2021) on the Disregard of Lab Rats

Elena T. Contreras and Bernard E. Rollin, “The Convenient Disregard for the Rattus Species in the Laboratory Environment: Implications for Animal Welfare and Science.” Journal of Animal Ethics 11(2): 12-30, Fall 2021.

• In nature, “rats live in colonies. They are very social and playful animals....[p. 13].” 

• Rats roam a bit, over blocks and neighborhoods; they forage and dig and burrow and climb and, frequently, stand up!

• Rats display a wide variety of emotions.

• Rodents dominate the US animal research industry, with tens of millions used for research annually.

• Rats bred for research are excluded from the Animal Welfare Act, nor are they counted in official laboratory animal stats.

• If we conditionally “accept” that rats will be used for research, we still want to know about (and control) the conditions under which they are kept. Their current living space typically is in a “shoebox” container, often with one or two rats, and is, of course, completely inconsistent with their natural range and sociability.

• The conditions under which lab rats are generally kept is bad for their wellbeing and bad for the validity of the experiments they are subjected to. “One might wonder how the rats feel about living in small rat boxes for eternity [p. 16].” The trend toward “enriched” environments provides little improvement for the living conditions of lab rats.

• “Satisfaction of telos leads to happiness” while “impediment of telos leads to unhappiness [p. 16].” (Five Freedoms and Five Domains (nutrition, environment, health, behavior and mental state) are indices of telos.) In research labs, “rats live in a constant state of deprivation of their telos and positive experiences [p. 18].”

• Just moving rats around, along with other types of handling, leads to stress and fear. Lighting and daytime experimentation are other sources of discomfort.

• The barren environment of lab rats does not reduce variance in behavior, it doesn’t make them more comparable or useful to science: Replacement, Refinement, Reduction – better lab rat welfare is also better science.

Maple and Perdue (2022), "Zoos and Aquaria"

 Terry L. Maple and Bonnie M. Perdue, “Zoos and Aquaria.” Chapter 15, pages 190-202, in Routledge Handbook of Animal Welfare, Andrew Knight, Clive Phillips, and Paula Sparks, editors, Routledge, 2022.

• This article offers quite a contrast to Randy Malalmud's "The Problem with Zoos."

• "Elite modern zoos provide innovative operating standards and best practices for achieving animal welfare [p. 190]"; furthermore, “many zoo animals are indeed thriving [p. 190].”

• “Normal social development requires mother-rearing, peer experience, and sufficient space to comfortably socialise with others [p. 190].” [The authors argue that we know how to provide such normal development in zoos, even if we often fail to. But modern animal agriculture (not covered by Maple and Perdue) is incompatible with "normal social development."]

• New (large) zoos are not common, but new aquaria are, and they often adopt an amusement park model, where dolphins, orcas, and whales do not fare well.

• The authors provide brief summaries of contributions by earlier animal behavior researchers, including Harry Harlow (he of the social deprivation experiments). "While Harlow was vilified by animal rights groups for his cruel experiments, his findings greatly benefitted zoo primates as he identified the variables that controlled socialisation [p. 193]." [One might wonder how a similar statement directed at cruel experiments on humans would be received.]

• The authors identify zoo landscape immersion at Seattle's Woodland Park and the "species-appropriate social group [p. 194]" for gorillas at Zoo Atlanta as important institutional developments for promoting animal thriving.  

• Zoo animal wellness is about thriving, not just coping. Scientists and zoos should work together to achieve optimal wellness.

• Zoo hippos, except at Disney(!), tend to have poor wellness (due to lack on riverine habitats); snakes don’t get enough room in zoos.

• 24/7 outdoor access can add to wellness; vertical space can perform a similar function for apes.

• Capture as well as confinement are very costly for whales and dolphins; the treatment of bears for harvesting bile is vile.

• Animal training can promote wellness; so can computers [compare with the iPad commentary in Malamud (2017)].

• Maple and Perdue are keen on zoo accreditation (from the best accrediting organizations) for assuring compliance with high animal welfare standards.

Malamud (2017) on Zoos

 Randy Malamud, “The Problem with Zoos.” Chapter 21, pages 397-410, in The Oxford Handbook of Animal Studies, Linda Kalof, editor, 2017.

• Professor Malamud opens this chapter with a zoo dialectic, a description of a thesis, antithesis, and synthesis.

• Thesis: Zoos offer rescue and conservation and build connections between humans and anymals – connections that lead to better outcomes for our planet.

• Antithesis: “Zoos and aquariums are prisons for kidnapped, alienated, tortured specimens who are forced to live their lives in vastly unsuitable compounds for the titillation of ignorant crowds brought in by marketing and advertising campaigns that promise highbrow ecological experiences but actually pander to audiences’ less noble cravings for amusement parks, or even freakshows [p. 397].”

• Synthesis: A happy medium?

• Malamud's chapter offers a full-throated defense of the Antithesis: "[A]ll zoos are bad zoos [p. 398]."

• Zoos reinforce speciesism, especially the notion that humans have the power (and are entitled) to control.

• Capitalism and ecology are inconsistent, despite the efforts of zoos to greenwash.

• The zoo spectators are free, the animals are captive, in an unnatural environment, forever: “the animals don’t want to be there [p. 401]…”

• "...And the people don't care."

• Modern public zoos have their origins in imperialism: witness Stamford Raffles. Sometimes humans were exhibited, too.

• “zookeepers will tell you that zoos were bad in the bad old days but are lately much improved [p. 403].” Malamud believes that zoos have been and remain bad.

• The true conservation mission of zoos is self-conservation (p.403).

• "Every species suffers its own particular pain in zoos [p. 405]."

• Gimmickry like having orangutans play with iPads is anthropocentric, sending to humans the coded message that the zoo dwellers are better off than their wild cousins. "If we like to waste our own days playing with iPads, we reason, why wouldn’t they [p. 407]?" By “giving” zoo animals stuff, we try to justify their captivity.

• We frame zoo animals in our terms, not theirs; “we have to learn to leave these animals alone [p. 407]."

• “Zoos, unfortunately, perpetuate misinformation [p. 407]...”

Norwood (2020) on Intensive Animal Agriculture

 F. Bailey Norwood, “The Economics of Intensive Animal Agriculture,” Chapter 10, pages 127-140, in The Routledge Handbook of Animal Ethics, Bob Fisher, editor, Routledge, 2020.

• Farms used to produce “a variety of foods [p. 127]” – it was economical, by spreading risk and combatting disease and maintaining soil quality. Crop rotation was one manifestation of this intra-farm diversification.

• Tech change (pesticides, feed…) undermined the economic advantage of farm diversification. 

• Farms also have become more intensified, with more product for a given area. Farm animals, many of whom used to need to graze outside to acquire a nutritious diet, can now be housed indoors all year long, receiving adequate nutrition thanks to advances in livestock feed.

• Again, the result of decades of technical change is specialization and intensification – and often, indoor-ization for both the animals and farm workers.

• Barns have changed, too – cages or slatted floors allow manure to be removed – and antibiotics can be added to feed; both of these measures reduce problems associated with parasites.

• Economies of scale emerge in the specialized farms, resulting in intense crowding for the animals – witness gestation crates.

• The old-style, extensive and diverse farms, became economically obsolete, and the new specialized farms often compromised animal welfare.

• The indoor work altered life for farmers, too, who became more like factory workers. Farmers often became contract employees, with processors owning the animals and providing inputs such as feed. The processors need uniformity in the “product,” and farmers have very limited choice among potential buyers.

• Consumers generally object to the conditions on factory farms (p. 130).

• Ameliorating the worst features of factory farms raises the costs of production, though not drastically – but retail prices for higher-animal-welfare products can easily double or triple. Why? Because currently, higher-welfare animal products are “a niche market serving affluent customers [p. 132].”

• Though most people don’t pay the premium for higher-animal-welfare products, those same people often want to ban slaughterhouses, a policy which would eliminate their ability to purchase meat. (Or do they just say they want to ban slaughterhouses, falling prey to “social desirability bias [p. 133]”?)

• As the behavioral economists note, virtually everything can affect individual “preferences” for animal products: are you in a grocery store or a voting booth (p. 133)?

• With inconsistent individual preferences (and internal conflicts), there is no way to unambiguously determine the costs and benefits of a policy change. Consumers simultaneously support (with their purchases) and protest factory farming.

• Some people want to remain ignorant about animal farm conditions.

• California’s Prop 2, in 2008, passed with 63.5% of the vote, required more space for hens, and (with an additional law that applied the more space rules to eggs produced out of state but sold in California) raised egg prices (in 2016) by some 10%. 

• A person who doesn’t purchase cage-free eggs might still vote for a ban on cages – maybe the ban serves as a commitment device for sophisticated, inconsistent consumers?

• "The cost of paying more for cage-free eggs is about the same regardless of whether it is voluntary or forced [by a ban on sales of caged eggs], but the benefits of it being forced can seem much larger because so many others are doing it also [p. 136]." 

• Referenda like Prop 2 [or now Prop 12] might permit consumers to coordinate in a way that they cannot easily achieve with their market purchases – even vegans, who don't purchase any eggs, can vote in the referenda!

Meyer, Forkman, Fredholm, et al. (2022), on Pet Dog Welfare

Iben Meyer, Bjorn Forkman, Merete Fredholm, Carmen Glanville, Bernt Guldbrandtsen, Eliza Ruiz Izaguirre, Clare Palmer, Peter Sandøe, “Pampered Pets or Poor Bastards? The Welfare of Dogs Kept as Companion Animals.” Applied Animal Behaviour Science 251: 105640, June 2022. 

• In the past, human interactions with dogs were primarily with free-roaming "village" dogs. This article employs the lives of modern village dogs as a standard against which to consider the welfare of companion dogs.

• Village dogs tend to have a high pup mortality rate and a relatively low life expectancy of 3-to-4 years. (Companion dogs live, on average for more than 10 years (page 5).) Nevertheless, village dogs are rather healthy and well-adapted to village life. 

• Pet owners generally control the amount and nature of social activities for their dogs. 

• Pet dogs often are considered to be family members. They typically receive shelter, adequate food, and health care.

• Pet dogs often suffer from separation anxiety, and also often spend considerable time alone. (The pandemic tended to reduce or eliminate alone-time, and the end of the pandemic introduced separation for dogs with little or no prior experience of it.)

• Pet dogs are expected to behave well when socializing with other dogs, though the owners generally decide the (limited) extent and nature of socialization; crucially, unlike village dogs, sometimes exiting the situation is not an available strategy for a pet dog. Aggression towards other dogs seems to appear more frequently with pet dogs than with village dogs. This dog-on-dog can lead to dogs being put down, so it is a serious welfare issue for pet dogs (page 3).

• Pet owners often expect an unrealistically high tolerance from their dogs for some forms of social interactions, such as hugging; further, owners might not notice signs that their dog is perturbed by the interaction, and aggression might be the eventual result.

• "Ultimately, few dogs embody the ‘ideal’ companion dog that can both tolerate social isolation for many hours a day and meet the high expectations of social interaction with the family and unfamiliar dogs [p. 3]." Again, the result can be the sundering of the pet relationship, and possibly the death of the dog. Better informed owners with more appropriate expectations could help reduce this problem. 

• Modern dog breeding only dates to the Victorian era. Breeding has brought some serious welfare issues. Canine physical characteristics popular with humans, such as flat faces and skin folds, can be detrimental to the health of dogs.

• Limited gene pools (inbreeding) can also lead to welfare problems, so ensuring a wide gene pool (for example, by not having just a handful of male dogs as sires) can help dogs. 

Bok (2011), "Keeping Pets"

Hilary Bok, “Keeping Pets.” Chapter 26, pages 769-795, in The Oxford Handbook of Animal Ethics, Tom L. Beauchamp and R. G. Frey, editors, Oxford University Press, 2011.

• Pets have interests that should be taken into consideration.

• Pets live in environments that are not designed for them, and pets are dependent on their human partners.

• When a human elects to sever a relationship with a pet, it often implies imprisonment or death for the pet -- this is not the case for intra-human sunderings.

• We cannot explain to our pets why we need them to follow certain rules, nor come to an explicit understanding about allowable behavior; again, these limitations do not similarly mark intra-human relationships. 

• "...we are responsible for ensuring that our pets do not pose a danger to other humans. This is a duty we owe not just to those humans but to our pets, since nonhuman animals who attack humans are normally killed [p. 772]."

• Unlike wild animals, dogs are trainable and care about how we feel about them. Dogs can control their behavior, and are sufficiently reliable that we might let them interact with small children. (Chimpanzees are not so reliable.) But the lack of a common language still puts a limit on the extent of agreed-upon reciprocity we can expect with dogs.

• Bok does not think that pet ownership is ethically wrong, even given the property status of pets. Current legal structures do not require that we treat our pets in a morally questionable manner (p. 776) -- though those structures might grant rights to humans that they should not have. 

• "...if someone who wants to take a dog into her home allows the law to describe her as 'owning' that dog, but does not allow this fact either to affect her treatment of her dog or to perpetuate that legal system, and if the alternative is allowing domestic dogs to die out altogether, it is hard to see how her action harms her pet in any way [p. 777]."

• The decision to acquire a pet is rather high-stakes and requires careful consideration: "To adopt an animal as a pet is to undertake to meet her needs, and to accept the responsibility of ensuring that one's relationship with her is good for all concerned [p. 778]." Again, wild animals do not make suitable pets, and when they nevertheless are adopted, they often end up in cages.

• Pet dogs have to be taught, though this teaching need not involve the exercise of power. "The most basic function of training is to enable us to tell dogs not to do something when it is very important that they not do it, to teach them to avoid behavior that is dangerous to themselves or to others, and to teach them how to function in human society [p. 783]."

• Sometimes dog training does require the exercise (but not abuse) of power. It is an unkindness to your dog not to make sure that it can live a "safe and decent life [p. 783]."

• Pet dogs that remain vicious and pose a danger to humans need to be put down -- our efforts to otherwise shield humans from our dog will prove insufficient. The issue is whether the dog is put down before or after it attacks someone (p. 785). 

• Despite emphasizing the occasional need for pet owners to make difficult decisions, Bok's article ends on an upbeat note: "For the most part, owning pets involves not serious moral dilemmas but minor inconveniences set against a background of wonder, delight, and the joy of opening our hearts to animals who are so willing to open theirs to us [p. 791]."

Hessler, Jenkins, and Levenda (2017) on the Wild-Caught Fishing Industry

Kathy Hessler, Becky Jenkins, and Kelly Levenda, “Cruelty to Human and Nonhuman Animals in the Wild-Caught Fishing Industry.” Sustainable Development Law & Policy 8(1): 30-38 and 56-63, Fall 2017.

• Something like 1 to 3 trillion fish are caught each year for human consumption (fishcount.org.uk).

• The wild-caught fishing industry encompasses the catching of finfish; crustaceans (including shrimp); mollusks (snails, clams, etc.); cephalopods (octopuses, etc.); and cetaceans (whales, dolphins, etc.).

• Some wild-caught fish are consumed by humans, but much is consumed by livestock and pets, too; most fishmeal and fish oil is now used for aquafeed.

• Common fishing methods include trawling (dragging a net); purse seining; gillnetting; tangle and trammel netting; rod & line, trolling; pole & line, longline (often with bait fish). [Each of these fishing methods has its own set of welfare concerns, but all of the methods seem quite horrid to me, alas.]

• Underappreciated(?) welfare issues with capture include: by-catch; exhaustion and high mortality of captured fish pre-slaughter; decompression; crushing; predators; hooks; and ghostfishing. 

• The slaughter of wild-caught fish is often gruesome: it can be long and painful, with death typically due to suffocation or live gutting. Fish are not given protection via the US Humane Slaughter Act.

• The authors offer some suggestions (pages 32-34) for improving the welfare of wild-caught fish. Among the suggested measures are: a ban on the use of live bait; limiting the duration of suffering by emptying nets and lines more frequently; banning j-shaped hooks and gillnets; permitting only near-surface-level fishing; banning gaffing and shortening the landing stage; and, rendering fish unconscious prior to slaughter.

• Towards the end of the article (pages 34-37) the authors move away from fish welfare to concentrate on the welfare of the humans who work in the wild-caught fishing industry. Commercial fishing is dangerous and often deadly, and abuses are hard to monitor on the high seas; it also is hard to provide emergency medical care in remote areas at sea.

• Forced labor seems to be commonplace in the global fishing industry. Migrant workers in fishing, who face barriers in seeking justice for violations of their rights, are sometimes exploited. 

• Seafood importers, and not just exporters, need to address production and labor issues (page 35).