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New law school program unleashes animal rights

New law school program unleashes animal rights

Can chimps sue? No, but someday soon they might achieve legal �personhood'

By peter korn

The Portland Tribune, Nov 24, 2011

Lewis & Clark Law School professor Pamela Frasch doesn't think her views are radical, and maybe they aren't, anymore.

It's hard to pick up a newspaper these days without finding at least one story having to do with animal welfare. An exotic animal collector in Ohio lets loose lions and tigers, forcing police to hunt them down and kill them. Sea lions are shot and captured in order to save the salmon they eat. Animal rights protests at circuses, cat hoarders taken to jail, wolves both protected and hunted -- signs are everywhere that the relationship between people and animals is shifting.

Portland is close to ground zero in this emerging cultural clash since Lewis & Clark's recent announcement that it will become the first law school in the world to offer an advanced degree in animal law.

The degree is new, but for years the law school has been gaining a reputation as a national center for training attorneys to help society work out these issues, at least legally.

What started the shift, say Frasch and others, has been a growing body of evidence showing that animals are a lot smarter, and maybe even a lot more capable of feelings, than had previously been assumed.

"The law is lagging behind what science is telling us," she says.

So, back to Frasch's views. Is it radical to think that using animals in circuses or to draw carriages through city streets is wrong? Frasch says putting animals in those stressful situations simply for the entertainment of people ignores the animal's role in the equation.

"The animal's interest should be considered, and that's hardly happening right now," she says.

Is it radical to believe, reluctantly, that scientific experiments on primates such as chimpanzees and monkeys should be stopped? "The argument in favor of testing on them (is), they are so close to human," Frasch says. "For that reason, we should not be testing on them."

Frasch, who also serves as executive director of the Center for Animal Law Studies, emphasizes that she teaches all points of view in her law classes, and encourages her students to form their own opinions. She's also aware that what might have seemed radical 10 or 20 years ago is coming closer to the mainstream every day.

But Frasch doesn't think an animal's intelligence should dictate how we treat it. She'd rather base protection on whether the animal can feel pain and what she calls its "intrinsic value," even while acknowledging the slippery slope such thinking creates. It's one thing, she acknowledges, to say chimps and whales shouldn't be experimented upon or held captive, but then what about mice or even fish?

"We get (questioned) a lot, �Where are you going to draw the line?' " Frasch says. "I'm not sure, but what I do know is we know enough about certain animals that at least we can start considering the interests of those animals."

Counterproductive laws

Portland and Oregon were leaders in the animal welfare movement long before Lewis & Clark's recent announcement. Sharon Harmon, executive director of the Oregon Humane Society, says that her organization was the third humane society formed in the country -- in 1868 -- following New York and Boston.

Oregon was the first state to require dogs and cats to be anesthetized before they are euthanized, she says, adding that Portland is consistently ranked among the dog-friendliest cities in the country.

The nonprofit Animal Legal Defense Fund ranks Oregon as the fourth-best state in terms of animal protection laws, behind Illinois, Maine and Michigan. Animal activists chased Schumacher Furs out of town three years ago with protest tactics that not every U.S. city would have allowed.

With all this interest in animals, it shouldn't come as a surprise that Portland is also home to the National Animal Interest Alliance, a nonprofit that, according to founder Patti Strand, is holding back the tide of an animal rights movement bent on going too far.

Strand, co-author of "The Hijacking of the Humane Movement: Animal Extremism," says her organization is all for punishing those who abuse and neglect animals. But her view is far across the spectrum from Frasch's as to what constitutes abuse.

Strand calls research using primates vital. As long as the animals are treated decently, she says, she supports animals used as entertainment. Laws that tell chicken or pig farmers how much room they must provide each animal go too far, she says, and often are counterproductive.

She points to U.S. laws that banned the slaughter of horses, which she says only increased the overall suffering of horses. People who want to get rid of old horses either abandon them or ship them to Mexico, where the slaughtering is less humane than had been practiced in the United States, Strand says.

Which isn't to say Strand doesn't believe in drawing lines.

"All animals experience pain," she says. "I don't care as much about an insect's pain as I do about a child's. The world is full of all kinds of challenges and problems. It's about priorities."

Strand says that the animal welfare movement has been co-opted by what is often called the animal rights movement, which Strand believes is driven by a "hidden agenda."

"The agenda is an abolitionist movement that seeks to eliminate all or most uses of animals no matter how humane or responsible," she says. "They never will draw a line. They just keep moving the thing forward. It's an opportunistic movement that has political power and money."
Not just a �legal thing'

Steven M. Wise, an adjunct professor at Lewis & Clark Law School, isn't sure about the power and the money. He's not hiding his agenda. Quite the opposite: Wise is at the forefront of the nation's animal rights movement.

As founder of the Nonhuman Rights Project, Wise directs two paid staffers and 40 legal volunteers who haven't filed one legal document in four years. Instead, they have been working toward filing one motion in 2013 that Wise is certain will fundamentally change the relationship between humans and animals, by establishing that highly intelligent animals have rights in the same way that people have rights.

Much of the project's work is searching for the one judge who will be most likely to agree with the common law argument they have been carefully constructing.

"The purpose is to gain legal personhood for nonhuman animals," Wise says. "Ten years from now, it will have happened."

Wise draws a parallel in his work to a 1772 ruling in an English court that first established that a black slave, James Someret, was not a "legal thing" but a person. That successful case, Wise says, established the groundwork that would eventually lead to the end of slavery.

Similarly, Wise is working on his one case to establish personhood for an animal. His case might involve a research chimpanzee, an aquarium dolphin or a circus elephant. That, he says, will depend on where the project finds the most willing judge.

Wise says that science has shown that some of these animals are more intelligent than some humans, so intelligence can't be used to define why humans have rights and other animals don't. Animals such as chimps and dolphins, he says, are "humanlike" with language, problem-solving abilities and self-consciousness. There really is no justification for humans to deny rights to the most intelligent of animals, he says, other than the fact that they can.

Wise likes to point to a 2001 Zogby International survey showing that 60 percent of U.S. citizens thought that chimpanzees should have at least the same rights as human children. He's certain that in the past 10 years that figure has grown. He's just as certain that in two years, the country will be ready to put those sorts of ideas into actions.

"Once the first animal is seen as having the capacity for rights, then the question changes from �Are you a human being?' to �What sort of being are you?' Are you the kind of being that, using our values and principles, should be entitled to rights?" Wise says.

Slight differences

Jim Huffman, dean emeritus at Lewis & Clark Law School, doesn't agree with Wise's view of animal rights, but he does think Wise is likely to succeed. As far as Huffman is concerned, to have rights a being needs to be able to represent himself in court, or at least, as with children, have somebody represent them who can reasonably know what they would want.

"If we could get to the point where a chimp has the capacity to choose and the ability to express that choice, then I might be a little more comfortable with this idea," Huffman says.

Huffman uses as an example a tiger in the zoo. If given rights in a court of law, he asks, "Which rights does a tiger have?"

If the tiger has the right to act on his own nature, then he would be free to assault and eat people. If given the same rights granted people, it would be illegal for the tiger to attack. Humans deciding what a tiger or a chimp would prefer does not equal rights, Huffman says.

Huffman says he supports medical research, even on higher primates such as chimps. "It's an uncomfortable choice, but we've got to make uncomfortable choices," he says.

And yet, Huffman says Wise will probably find a sympathetic judge and history will be made. He understands why.

"I go to the zoo and see chimps and I just find it spooky," he says. "The difference between them and us is so slight. That forces you into a dilemma."

Pets as property issue clouds animal rights

Even as Lewis & Clark Law School begins turning out attorneys ready to practice animal law, Portland attorney Dane Johnson would like those graduates to know that it's a tough field in which to make a living.

Johnson is a Portland personal injury lawyer struggling to build a specialty in animal law.

While endangered species and anti-cruelty statutes might get a lot of media attention, most of Johnson's cases at this point have to do with companion animals and pets. He's had clients whose service dogs have been stolen and has brought a malpractice suit against a veterinarian.

Johnson says the biggest barrier he and his clients face is laws that still consider pets to be property, rather than beings. That means that a client able to prove in court that her pet dog was stolen or shot by a neighbor is still only entitled to the amount of money it would take to buy a similar dog at a pet store. There is no compensation for emotional pain or distress suffered by the owner, or the dog.

"In the eyes of the law dogs are considered personal property the same as a desk or a car or a pencil. They're no more than that. It's still an extremely hostile environment for animal rights," Johnson says.

Johnson thinks that has to change. "I think it's just contrary to the reality of how people and dogs relate to each other in our modern culture," he says.

-- Peter Korn

Humane Society work comes full circle

Nowhere is the changing relationship between people and animals more evident than at the Oregon Humane Society. In fact, Sharon Harmon, the society's executive director, says her organization's work has come full circle in recent years in an unexpected way.

When founded in 1868, the humane society wasn't concerned with family pets, but with the welfare of children and livestock. It wasn't until the 1920s, Harmon says, that treatment of cats and dogs became the issue that would serve as the society's focus.

The Oregon Humane Society in recent years has successfully lobbied for legislation which makes sexual assault on an animal a sexual offense so that offenders can be tracked. A primary justification for the law is research showing that people who abuse animals often turn to abusing people, especially children and the elderly.

But what's really brought the humane society's work full circle, Harmon says, is its work with pet abusers. Often, she says, staff will enter a house where dogs and cats have been abused and find abused and neglected children there as well.

Staff will call in state children's services officials, but they can be left puzzling out the priorities of neighbors who called the society in the first place.

"I think people are more likely to report animal abuse," Harmon says. "I know they're more likely to report it over child abuse. We look at how people threat their children, (as if) that's family business. But if they kick their dog we hear about it. We go out and find there's no food for the kids, or grandma hasn't been taken care of."

-- Peter Korn

Free-range versus caged question is complicated

If Pamela Frasch, assistant dean of the animal law program and Lewis & Clark Law School, could change one thing in the world of animal welfare, she would ban battery cages used to keep millions of egg-laying hens confined in extremely tight spaces.

In fact, Oregon became a leader last legislative session when it joined a handful of states that have passed legislation requiring egg farmers to phase in enriched colony cages which will give hens more room to move about.

But Greg Satrum, co-owner of Willamette Egg Farms in Canby, says the issue of hens and cages illustrates one of the stickier issues in animal welfare -- figuring out what's really best for the animal.

Satrum says if you want to analyze what keeps his hens happiest, it makes sense to look at their stress hormone levels, and what keeps them alive the longest. Caged hens, he says, consistently test lower for stress hormones than hens allowed to roam free outside, where predators and inclement weather are their enemies. Cage-free hens allowed to run around inside a barn kick up dust which gets into their lungs and into the lungs of Satrum's farm workers. They also tend to peck each other -- causing pain.

The death rate for free-roaming hens is much higher than for caged hens, Satrum says. So which would the hen prefer, a shorter life roaming free while under stress, or the complacency of a long life of controlled confinement?

"It's really complicated," Satrum says. "That question has not been answered."

-- Peter Korn

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