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Published by the students of Michigan State University College of Law

Journal of Animal Law Vol. VI (2010)

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ARTICLES:

Evolving Functions Of Service And Therapy Animals And The Implications For Public Accommodation Access Rules

John Ensminger and Frances Breitkopf...........................................1

The proliferation of service dog types, beyond dogs serving people who are blind, deaf, or mobility impaired, has necessarily resulted in added complexity in the interpretation of the statutes and regulations that apply to these dogs and their handlers. The Departments of Justice, Transportation, and Housing and Urban Development, along with some states, have in recent years also issued or proposed rules taking into account dogs whose services relate to autism, post-traumatic stress disorder, cognitive disabilities, and other conditions, yet the rules of the various agencies and states are increasingly inconsistent, and the same terms may have different meanings for businesses, airlines, and for different kinds of housing accommodations. The authors describe the issues and recommend ways to reduce the confusion.

A Case Study Of African Elephants’ Journey From Swaziland To US Zoos In 2003: A Question Of Commerce And A Tale Of Brinkmanship

Lisa Kane........................................................................................51

African and Asian elephants are subjected to a variety of human threats to their survival, including the international trade in live elephants. The United States zoo industry, committed to displaying live elephants, has been largely unsuccessful in maintaining and breeding elephants in captivity. This suggests continued resort to importation of wild-caught animals is inevitable. Elephants, designated Appendix-I species, may not be lawfully imported under CITES unless the purpose of the importation is non-commercial. Examination of a recent legal challenge to the zoo industry’s importation of wild-caught elephants permits analysis of whether zoos’ display and captive breeding of elephants are non-commercial activities under CITES. Specifically, this article examines the argument: that determining that an import has a noncommercial purpose turns on the importing party’s actions rather that its status as a charitable or educational institution; the article also examines influence of threats by the exporting nation to cull on the US federal court.

Brazilian Animal Law Overview: Balancing Human And Non-Human Interests

Tagore Trajano de Almeida Silva....................................................81

This paper offers a conceptual analysis of the state of Animal Law in the Brazilian system. It discusses how the Brazilian judiciary respond to the animal rights debate. It also asks how the Brazilian courts have developed the debate and decided in some of the cases pro interest of animals such as Festival of Oxen, cockfighting, and principally habeas corpus for animals. Additionally, it explores the effects of unique provision of the Brazilian Constitution stating that the government shall protect the fauna and species, prohibiting the cruelty to animals. Thus, this paper shows that this debate offers a pattern of understanding of how the Brazilian legal system operates.

With Whom Will The Dog Remain? On The Meaning Of The “Good Of The Animal” In Israeli Family Custodial Disputes

Pablo Lerner.................................................................................105

Israeli courts have recently become increasingly proactive and intervene more often in animal rights issues. Prior to Ploni v. Plonit, a custodial dispute over a family companion animal had yet been determined by an Israeli court. In this case, the Court determined that the companion animals would continue to live with the defendant and adjudicated it using the “good of the animal” test. The use of the “good of the animal,” is a functional concept that allows judicial discretion to avoid familiar disputes and stresses the need to consider the animal’s needs and interests in understanding the special relationship that exists between humans and animals. This Article primarily focuses on two questions: 1) How is the standard “the good of the animal” defined? 2) What are the similarities and differences between this standard and the standard—”the good of the child”—which is used in child custody issues.

NOTES & COMMENTS

The Fine Line Between Animal Advocacy And Enterprise Terrorism

Daniel Albahary............................................................................131

This Note briefly canvasses a few of the important social and legal issues in contemporary animal advocacy and explains how they have become inextricably politically altered in the post September 11, 2001 American consciousness. It argues that while the Animal Enterprise Terrorism Act presents a number of serious legal problems, it still continues to be seen by those in power as the best social and legal response Congress can develop in the face of the broad domestic violence committed by animal rights extremists. While much of this purported activity nevertheless falls under the general purview of states’ criminal law power, some argue that our world has changed too much since 9/11 to leave the acts of these activists to only the workings of the criminal justice system. This Note examines the legal veracity of this argument.

Adapting The Child’s Best Interest Model To Custody Determination Of Companion Animals

Tabby McLain...............................................................................151

Companion animals are currently treated as property in the law. When a married couple divorces, the home’s companion animals are  distributed according to the same laws that govern distribution of the furnishings and other inanimate objects that the couple previously shared. As society’s views change and companion animals in the home become more a part of the families they reside with, some courts have taken steps to accommodate this dynamic in the divorce settlement process. While some judges are attempting to award custody of companion animals by thinking outside the box of traditional property concepts, this trend is by no means universal. In this article, I propose a change in the law which would allow all courts to take into account the needs and desires of the companion animal itself by modifying the best interest model currently in use for children involved in custody disputes.

2009-2010 Case Law Review

John F. Hilkin................................................................................169