Volume 26, Issue 1 (2020)


Mathilde Cohen, Toward an Interspecies Right to Breastfeed

Milk is young mammals’ primary food. Yet, lactating animals raised for their milk, such as cows and goats, are subject to extreme forms of violence and control preventing them from breastfeeding their own young. Numerous human parents also lack the legal, economic, social, and emotional support they need to nurse their children. At one level, the situation of humans and that of farmed animals is incommensurable in that the latter’s reproductive and lactating capacity is typically exploited and rewarded by death when unprofitable. At another level, lactating animals of all species are in a related social status. Lactating parents, typically gendered as female, produce a highly valuable resource in a position of subordination. Meanwhile, many infants are neither breastfed nor fed their species’ milk. While breastfeeding law and policy is usually presented as a human public health problem, this Article argues that it is also an interspecies food and environmental justice problem. Both humans and animals are under-protected or unprotected by the law when it comes to lactation. This Article proposes the idea of an interspecies right to breastfeed, that is, a right the central meaning of which would be similar across species, even though its full implementation might require different accommodations, depending on each species. At its core, the right should be understood as relational in that it protects the breastfeeding relation, rather than the breastfeeding parent/caregiver or the breastfed child each taken in isolation.


Tess Vickery, A Taxonomy of Class Actions for Animals in the United States

Class actions are commonly used to redress mass wrongs against humans—but what about mass wrongs against animals? This Article provides a comprehensive overview of the types of animal-related class actions that have been filed in the United States, predominantly in the field of consumer law, and explores how these actions can be used as a strategic tool to advance protections for animals within the confines of their legal status as property. This Article also highlights the challenges that have been faced by these animal-related class actions in obtaining class certification pursuant to Rule 23 and offers some practical strategies for overcoming them in the future. In doing so, the author hopes to provide a clear and concise guide for the animal protection movement to successfully utilize the class actions for the benefit of animals.


Jareb A. Gleckel & Sherry F. Colb, The Meaning of Meat

Plant-based and cell-based meat companies are vying to take over the trillion-dollar meat industry—and, in recent years, they have gained momentum. Responding to consumer demand and widespread fear about global climate change, investors like Bill Gates, Richard Branson, and even Tyson Foods began investing in alternative meat. Beyond Meat became a publicly traded company and partnered with Dunkin’ Donuts, while Impossible Foods partnered with Burger King, bringing plantbased meat products into the mainstream. But many states with strong ties to animal agriculture have sought to impede the growth of the alternative-meat market. In August 2018, Missouri became the first state to restrict how alternative companies use the word ‘meat’ and related terms on their labels. Eleven more states have passed similar ‘Tag-Gag’ statutes. This Article reviews three primary constitutional challenges plant-based companies have leveled against such provisions—challenges based on the First Amendment, Due Process, and the Dormant Commerce Clause. After Part II evaluates the merits of these claims, Part III explores how they could advance or inadvertently undermine other animal and civil-rights lawyering strategies. To supplement the standard arguments, Part IV proposes ways for cause-driven plaintiffs like Tofurky—the first company to challenge Tag-Gag laws—to amplify their free speech claims. First, this Part suggests that although the statutes at issue appear to target mere commercial speech, courts have reason to view them as regulations of political speech calling for strict, rather than intermediate, scrutiny. Second, this Part suggests that plaintiffs could challenge Tag-Gag statutes not only under the First Amendment but also under the free speech provisions of state constitutions.


Jeffrey Bausch Jr., The Regulatory Vacuum: How Marijuana’s Schedule I Status Imperils Endangered Species in the Emerald Triangle

The U.S. Fish and Wildlife Service (the Service) is unable to adequately address Endangered Species Act (ESA) petitions because marijuana’s Schedule I status creates a regulatory vacuum. Marijuana growers use pesticides, many of which are lethal at certain concentrations. Typically, these pesticides are highly regulated by the Environmental Protection Agency (EPA). Farmers may only use pesticides specifically prescribed for use on the plant or crop. EPA has been unable to research or register pesticides for use on marijuana plants, and as a result, growers use pesticides at abnormally high concentrations. Wildlife in northern California and Oregon are directly harmed as a product of the regulatory vacuum. Endangered species like the Humboldt marten and the Pacific fisher have high rates of rodenticide exposure, which marijuana growers use on their plants and leads to deadly concentrations of bioaccumulated rodenticide.

Environmental groups have filed numerous petitions to protect these species under the ESA. But the Service cannot adequately address the very real threat of rodenticide because of the regulatory vacuum. Congress must remove marijuana from Schedule I. The integrity of the ESA relies on sound judgment from the Service, but the current regulatory environment corrupts the Service’s ability to protect endangered species. The regulatory vacuum is deadly for the Humboldt marten and the Pacific fisher.

This Article first provides a discussion of the ESA’s petition process for context. Next, it outlines how the absence of federal regulation causes wildlife deaths in Oregon and California. The Article then examines why the Service is unable to effectuate its duties to protect endangered species. Lastly, the Article posits that coherent federal regulation will save threatened species in the future.


Alana Van Gundy, The Archaic Attempts to Protect Nonhuman Suffering: Suggestions for the Advancement of Legislative Regulation of Online Depictions of Animal Cruelty

The Internet is often used to disseminate acts of cruelty to nonhuman animals through social media postings, live feeds, remote-controlled Internet hunting, and industry videos, such as dogfighting and crush videos. Some state and federal laws regulate the depiction of animal cruelty online, either directly or indirectly. However, current statutory regulations do not fully address or completely prohibit the viewing, promoting, and depicting of animal cruelty online. Preventing Internet animal cruelty requires new or revised legislation encompassing the marketing, promoting, and depicting of online animal suffering. While more specific laws are necessary, legislators must consider numerous issues and potential ramifications of creating prohibitive legislation directed at online depictions of animal cruelty.


Sande L. Buhai, Pets as Property: Signs of Change in the Law of Judgment Collections

Americans are deeply connected to their companion animals, regardless of what protections the law affords animals. Because the law follows culture, recent legislative and judicial developments have begun to reflect the bonds formed between human and nonhuman animals. This Article first highlights how courts and society viewed animals in the twentieth century to the present day, focusing on how courts have struck a balance between protecting animals yet still classifying them as property. While the law still views companion animals as property, this Article highlights the interstitial “property-but-not-property” framework courts use to consider the interests of animals in debt collection cases, arguing that laws and courts must go further to protect both animals and their humans.