Thinking About Animal Law

Bruce Wagman

Lately, I have been thinking about animal law almost constantly.  That has been the case for some time actually.  I’ve had the honor of being involved in the field for about eighteen years at some level, and pretty much had a full time animal law practice for the last five years.  I’ve been talking about animal law, reading about it, going to conferences and meeting the leaders in the field, and I have been privileged to participate in the national moot court competitions and work on a wide variety of cases.  Since I work it, live it and breathe it, I am also always talking about it.  I spend significant time explaining what animal law is – to other lawyers, to clients and to friends.  Being forced to describe and define it in ways that others understand, and so that they can get an idea of the scope of the field, requires some distillation.  Because at this point the field is expansive and has a variety of sub-specialties.  There are many lawyers who incorporate animal law into their practice and focus almost exclusively on one specific area within the field — companion animals, farmed animals, wills and trusts.      

I guess for me as a lover of the law (I am in the tiny percentage who thought law school was fun), one of the most exciting things about the field is that it is vibrant and new.  Animal law presents perhaps the most intellectually and ethically complex issues being considered by courts and lawyers today.  We must take the property status of animals, combine it with the knowledge of their sentiency, and incorporate it into doctrines of law that have never been applied in such a setting.  Faced with the basic credo of kindness, and the opposing forces of commercial uses, courts and legislators and practitioners are struggling with the reality of our treatment of animals in every sector.  How do we take the round peg of animals and adapt it to the square hole of the law?  Judicial opinions increasingly acknowledge the problems and struggle with answers that follow the rule of law but make concessions for the reality of the lives of animals.  Many decisions implicitly acknowledge the conundrum and internal contradictions while expressly stating the black letter law which in many cases denies animals any consideration under the law.  The unpredictability of the case law – and the danger of bad precedent — demands that every action be considered from multiple angles, and every decision be carefully made.  The new frontier demands that each step and path taken be carefully tested before going forward.

This is not the kind of law many people want to practice – and I don’t mean just because it is forcing the examination of our conduct and values around animals.  But it calls out for a level of commitment, at least for many of the practitioners that I know, that extends beyond professionalism and into lifestyle.  There is no real parallel in the law to the overlap between most animal lawyers’ work and home lives.  Once this work gets under your skin, it is hard to leave it behind at the office.  I find for myself I no longer really separate work from the rest of my life.  This is not so much because I am a workaholic, as because the profession has become a calling.  I think I can understand what those called to religion feel, although they find their value in an invisible god and I in the licking and pettable Dog (and other nonhumans).  There is also that feeling that I am doing something with my law degree that drives me out of bed and forward every day, and that might actually produce results for those who cannot speak for themselves, and that is a good feeling.  This effect is true for all the field touches — for those who practice animal law on a regular basis, as well as the thousands of lawyers who volunteer their time pro bono to help out on cases of value for the animals.

The combination of the amazing feeling of doing something important, and the creative, detailed examination of legal issues was ascendant in Chesley Morton v. Georgia Dept. of Agriculture, a case brought to stop the illegal gassing of dogs and cats in shelters around Georgia.  I was contacted by People for the Ethical Treatment of Animals lawyers, who had collected sufficient information to prove the state was breaking the law and encouraging and promoting the illegal gassing.  And the stories of abuse and cruelty in some of the shelters were ghastly.  I contacted Walter Bush and Chris Freeman, then lawyers in the Atlanta office of Schiff Hardin LLP.  Walter is a thirty-year lawyer with an auspicious history of courtroom victories, and Chris was his young associate.  They had no animal law experience before they met me.  They may have even been dubious when I first called, but within no time they were fully engaged in the process and devoted endless pro bono hours to the case.  We were committed but we realistically assumed it was a worthy fight with little chance of success – we were suing the state of Georgia and its thirty-year Commissioner of Agriculture in a state court in Atlanta for refusing to enforce the law.  There were any number of ways in which we could fail.  But the team, completed by Leana Stormont, ignored that and worked hard to put forth the best arguments possible.  And on a fateful morning in a full courtroom in Fulton County, Georgia, Walter Bush argued with passion and conviction, and won a permanent injunction against the state’s endorsement of illegal euthanasia.  Walter’s argument and the team’s work delivered justice and a reprieve for thousands of Georgia animals.  Walter and Chris took the case on like it was the most important lawsuit ever filed.  And for all those animals dying alone in Georgia gas chambers, it was.  After the win, Walter said that “the satisfaction of working on our case has been more valuable to me than any fee I ever earned.”  The lesson is this.  Animal law is valuable, vital, and the work moves lawyers in ways many did not expect when we entered the profession.

We felt similar relief, pride, gratitude and wonder when, working with the Animal Legal Defense Fund, we saved 700 animals who had been at All Creatures Great & Small, a horrible hoarding facility operating as a “sanctuary,” and when we saved 8 horses starving in barren field in North Carolina.  And when, Schiff Hardin’s Chicago lawyers represented the Humane Society of the United States in helping to uphold an Illinois law prohibiting the slaughter of horses for human consumption.  Cavel v. Madigan, 500 F.3d 551 (7th Cir. 2007).  Whether it is the promise of a kinder death for thousands of animals in shelters, or new lives for several horses in a field, the feeling of joy when a life is saved or improved is truly priceless.

We lose many of our cases, because we are trying to change millennia of entrenched human thinking.  And the pain of loss is multiplied by knowing that a loss means the suffering continues.  Even for the cases we win, there is always deep darkness before the light.  From the moment we hear about the situations that merit action, the painful, almost unbearable facts of the cases are with us as we carefully try to develop a viable legal theory to stop it.  Litigation moves slow (and legislation slower), and so once I have the facts of a case I feel a desperate urgency to stop the problem, and that anxiety must be tempered with the patience needed to properly prepare and prosecute the case.  I have found it helpful whenever possible to have someone to whom I turn to obtain strength, to redouble my conviction and to ensure that I do not weaken in the effort.  In the gas chamber case, early on we obtained evidence regarding a little puppy who had been placed in a gas chamber three separate times.  Each time he had been surrounded by other dogs suffering and dying, and each time he had breathed in the toxic gas, and gotten sicker and sicker, but had not died.  Each time he escaped death the cruelty had been compounded by placing him back in the chamber with a new set of dogs who he watched suffocate while he was further poisoned.  Mercifully he died the third time.  But his story drove us, after processing our anger and sadness, to name him Jeremy, and to dedicate our work to his memory, and to pledge to him that we would do everything we could to prevent it happening again.  We made shirts when we won.  “Jeremy spoke in court today,” they said, paraphrasing an early Pearl Jam song.  In the Woodley case, there was Angel, who lay quivering in her cage, covered in her waste, fully alert but unable to move because of some neurological problem, and left there like that in the circumstance that is hoarding neglect.  We cried for Jeremy, and for Angel, and for many others, and those tears filled our eyes with the vision to go on and fight for them too.

I guess I think about animal law all the time.  The stories are now the fabric of my soul.  I hope, despite the hurt that the work brings to my heart and mind, that I can stay involved as long as I breathe.