Why It’s Not About the Elephants

David Cassuto

Here now, a few words about the Ringling Brothers case.  The suit focused on the treatment of Asian elephants – an endangered species – by the circus.  Much credible evidence suggests that the elephants were mistreated, both by intent (using bullhooks to “train” them) and by the rigors of the circus life, a life which confined them for much of their lives, prevented them from socializing and from moving freely about and generally forced them to live counter to their instincts and nature.  These allegations and others seemed to place the circus in violation of the Endangered Species Act (ESA), whose “Take” provision (Section 9) prohibits the “take” of any endangered species. 16 U.S.C. § 1538(a)(1)(B).

The term “take,” as used in the ESA, includes actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The Fish and Wildlife Service defines “harm” to include any act that “actually kills or injures wildlife,” including actions that “significantly impair[ ] essential behavioral patterns.” 50 C.F.R. § 17.3. “Harass” under the ESA means: an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.  In sum, the Supreme Court has made clear that the ESA defines “take”  “in the broadest possible manner  to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.’ “ Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,515 U.S. 687, 704 (1995).

On the face of it, the allegations regarding the treatment of the elephants land squarely within the scope of behavior prohibited by the ESA.  This lawsuit marked the first time the ESA had been invoked to cover the treatment of performing elephants.  I do not here have time to summarize the merits and facts of the case; you can read more about it here and here and elsewhere.  I must focus on the procedural posture of the case since it ultimately proved dispositive.   Continue reading

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.

Continue reading

Sunstein Confirmed!

57-40.   Sweet!

Sunstein Filibuster Broken

The Senate voted 65-35 today for cloture on the Sunstein appointment.  That means an up or down vote on his appointment will likely happen later this week.  A little more here.  The wingnut jamboree continues, however, as Glenn Beck has thrown his formidable lack of sense or decorum into the fray.  More on this as it develops.

–David Cassuto

Sunstein Update — No Recess for the Nutjobs

The congressional recess hasn’t stopped the wingnutathon against Cass Sunstein’s nomination to head the Office of Information and Regulatory Affairs.  This opinion piece looks to rally all right-thinking Americans against radical ideas like: “[T]he law should impose further regulation on hunting, scientific experiments, entertainment, and (above all)  farming to ensure against unnecessary animal suffering.”  Apparently, the fact that Sunstein indited such sacrilege renders him unfit to clean the toilets of the OIRA, much less head up the office.  “In Sunstein’s dangerously detached worldview, money-hungry trial  lawyers could sue on behalf of every Polled Hereford in the land. And , everyone knows, they would. Clarabelle Cow could sue Ronald McDonald.”

Part of me remains hopeful that inanities such as these will galvanize public opinion behind Sunstein and give him a mandate to actually do something about the horrid state of regulatory affairs.  Of course, part of me also still believes in the Easter Bunny.

–David Cassuto

Sunstein… More on the Inertia Sweepstakes

Yes, there are other things to blog about but the Cass Sunstein nomination saga is both perversely fascinating and important.  Sunstein’s views on animal issues are at best tangential to the position of Head of the Office of Information and Regulatory Affairs.  Yet, they are raising Republican dander like nobody’s business.  Today, Senator John Cornyn placed another hold on the nomination, all but eliminating any chance Sunstein will be confirmed before the August recess.

As this post points out, Sunstein has the support of the Wall Street Journal Editorial Board while his views on regulatory policy have raised some eyebrows among liberal advocacy groups.

“We have concerns about some of his academic writings regarding his approach to regulatory policy and regulatory review,” Bill Samuel, AFL-CIO legislative director, told The Chicago Tribune. “We want to hear more from him about how he intends to approach regulatory policy.”

It would seem that no constituency is entirely happy with his candidacy.  Some in the animal advocacy community are as unenthused as our friends in the Senate.  Maybe that means if Sunstein ever gets confirmed, he’ll be beholden to no one.  Or, of course, it might mean he’ll owe everyone.  So far, it’s looking more like the latter.

–David Cassuto

Sunstein, Chambliss and the Pound of Flesh

In case you were wondering what (among other concessions) Cass Sunstein had to do to move his nomination forward, here’s a little tidbit.  Sunstein wrote Saxby Chambliss a letter, which Chambliss then read into the Congressional Record, in which Sunstein promises to  “respect” gun rights and “not take any steps to promote litigation on behalf of animals.”  In entering the letter into the record, Chambliss said “While I cannot agree with his ideas, his legal theories or his views, now that he has been educated about the toll they would take on hard-working farmers and ranchers in America, I am not going to keep him from any further consideration.”

As other concessions trickle into public view, I fear that what might have been a significant stride forward will instead turn out to be a prettied up form of inertia.  But I hope I’m wrong.

–David Cassuto

Sunstein Nomination: The Hold is Lifted

Saxby Chambliss has stepped out of the way.  Confirmation is apparently within reach.

–David Cassuto

Sunstein Nomination Inches to a Standstill

It would seem that Senator Chambliss remains worried about his peeps’ potential exposure to lawsuits by animals should Cass Sunstein be confirmed.  He also doesn’t like the fact that Professor Sunstein does not view the 2nd Amendment as a a blanket license to own weapons.

Further updates as events warrant.

–David Cassuto

Sunstein Nomination Inches Forward

Cass Sunstein will meet with Senator Saxby Chambliss (R-GA) today in an effort to convince him (Chambliss) that Sunstein’s thoughtful and comparatively moderate positions on animal rights and welfare won’t result in him (Chambliss) and his constituents facing lawsuits from pigs and other confined animals.  Chambliss had earlier placed a hold on Sunstein’s nomination to head the OMB’s Office of Information and Regulatory Affairs (related posts here).

Sunstein has so far succeeded in appeasing the Farm Animal Welfare Coalition (an umbrella group that includes such members as the American Farm Bureau Federation; see here for FAWC’s spirited defense of veal).  There is cause for cautious optimism that Senator Chambliss will find similar comfort.

More here.

–David Cassuto

Sunstein Redux

Will Harvard’s Cass Sunstein become an animal advocate in the White House? If confirmed by the Senate as the Head of the Office of Management and Budget’s Office ofInformation & Regulatory Affairs (OIRA), Sunstein would be responsible for the office which reviews all regulatory proposals from the Administration.  Yesterday, June 30, Sen. Saxby Chambliss (R-GA) put a hold on Sunstein’s nomination — specifically culling out his writings which explore the ability of animals to file lawsuits with humans acting as their representatives.  While Chambliss asserts this would lead to a farmer being sued by his own livestock, I don’t think Sunstein’s writings are all that different than people filing litigation on behalf of natural resources, children, or other beings or things without the ability to speak.

–Alexandra Dunn

Animal Issues Front & Center at Sunstein Confirmation Hearing

Cass Sunstein, President Obama’s choice for administrator of the Office of Information and Regulatory Affairs (a sort of Administrative Law Czar), is a law academic (U of Chicago and now Harvard) and an advocate and scholar of animal law.  He supports (among other things) the creation of a private right of action for animal protection statutes and the acknowledgment that such statutes create a basic foundation of rights (legally enforceable claims) for animals.  That and the fact that he once called for the abolition of hunting made his hearing less than smooth.  More details here; some posts about Sunstein here and here.

–David Cassuto