The Standing Conundrum

Gillian Lyons


One of today’s hottest debates in the field of animal law is the status of animals as property. (For more on one aspect of this property debate- take a look at Gary Francione’s Animals as Property.)  To my mind, one of the most important aspects of this debate is how this current property status can hinder individuals from taking legal action when they see private citizens abusing or neglecting their pets.

Volunteering for an animal law attorney this semester, I’ve come to realize just how complicated this issue is. If you see animal abuse or neglect- can you achieve a legal remedy? The answer is yes- sometimes. Reading Cass Sunstein’s article Can Animals Sue? (in the book Animal Rights edited by Cass Sunstein and Martha Nussbaum) he acknowledges that there are three circumstances where a human can protect animals in the federal court system: when the human seeks information about animal welfare, when the government failure to protect animals inflicts a competitive injury on the human plaintiff and when a human visits or works with an animal that is threatened with illness death or harm. My question is, if you don’t fit neatly into these three categories and you witness animal abuse, can you take legal action? As things currently stand, you can’t- unless the animal is considered your property or you can convince your local government to pursue criminal action (which quite sadly, would be quite difficult in most of the country.) This is because, as things stand, you would be hard pressed to convince a court that you have the injury-in-fact needed for constitutional standing.

Because injury-in-fact cannot be based on an injury to a third person, establishing it in relation to animal abuse can very much be a futile venture. I don’t necessarily know the best solution to such a complicated problem. I find myself agreeing with Cass Sunstein’s suggestion in Can Animals Sue? that “private citizens should be given the right to bring suits to prevent animals from being treated in a way that violates current law.” Agreement with Sunstein aside, I think in an ideal world, Justice Douglass says it best in his Sierra Club v. Morton dissent.

While Justice Douglass’ dissent addressed the legal status of inanimate objects and not sentiment beings and therefore was not exactly on point, his idea was that “those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies.” If you could extend this idea to standing in animal law suits- perhaps you could say that those who have to view the abuse and neglect on a regular basis, or simply those that appreciate the ability to be able to enjoy their own domesticated animals, should have standing to defend those sentient beings before courts or agencies.  An unrealistic idea, perhaps, but it would certainly be an ideal world for animals and animal lovers everywhere.

2 Responses

  1. I concur…
    meow.

  2. Standing doctrine did not evolve to exclude access to the courts for those concerned about animals. The constitutional requirement of a case or controversy embeds standing as a critical factor to avoid courts becoming forums to displace what the legislature can do.

    The relationship between pleading and proving a concrete injury and seeking an an appropriate remedy rationally links two critical aspects of litigation. If standing can not be established, the remedy putatively sought does not put the plaintiff in his/her rightful position since that position was never injured.

    Justice Douglas received much publicity when he announced that trees could have standing. One does not have to maintain being an Originalist to recognize that standing can only be established by persons (natural or juridical) if the judicial branch is to have a role that respects separation of powers.

    Enforcement of laws designed to protect animals is clearly increasing and will continue to do so as long as law enforcement feels that the public places a significant priority on such action. I suspect that such public law enforcement also has more of a deterrent impact, general and specific, than private litigation can.

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