Guardianship: Toward a more enlightened  view of human-animal  relationships and the law
<ul><li>“ The entire universe and everything in it,  animate and inanimate, is His. Let us not covet anything. Let us trea...
First, some interesting statistics: <ul><li>More than 100 million dogs and cats live in American households </li></ul><ul>...
If animals have it so good, why do they need guardians? <ul><li>“ A zoo owner is being investigated over allegations he at...
If animals have it so good, why do they need guardians  (cont.) ? (3) (2) (1)
So what would guardianship do that isn’t already being done? <ul><li>Revise the present  “animals as property”  scheme </l...
Guardianship for animals isn’t so different from present legal regime <ul><li>It would be much like the framework already ...
Short-  and  long-term guardianships <ul><li>Ideally, animal guardianship would include the ability to volunteer or be cho...
Two-tier guardianship system: <ul><li>(1) Primary  guardians </li></ul><ul><ul><ul><ul><ul><li>Owners </li></ul></ul></ul>...
Is declaring guardianship enough? Or is ‘standing’ also needed? <ul><li>Guardianship presumes that the guardian has  stand...
Why  can’t  animals have standing? <ul><li>In addition to natural persons, the law at one time or another  has breathed ju...
Citizen suits:  Guardianship in disguise? <ul><li>One way that already exists to challenge injuries to nonhuman animals is...
Citizen suits:   Like a million private attorneys general! <ul><ul><li>The 3Ms  (limitations on government action): </li><...
Pet trusts & guardianship <ul><li>18 states have ratified the  Uniform Trusts Act , which includes animal trusts </li></ul...
Brief history of animals & the law <ul><li>Animals as property  – Man’s first attempt to exercise control over animals pri...
Animals as ‘unique’ property <ul><li>People generally treat their animals differently  (usually better)  than they do inan...
Some arguments opposing guardianship  (and responses) <ul><li>“ You are taking away our right to do whatever we please wit...
Examples of animal transactions  beginning to use “adoption” language:
Conclusion:  Guardianship <ul><li>The time has come for the law to reflect humans’ growing understanding of animals as sen...
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Guardianship for animals joan bundy for 2009 az state bar convention

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Proposal on changing the paradigm for the treatment of animals in the law from property to guardianship (law-school substantial paper)

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  • Virtually as long as humans have been walking on the earth, they have recognized the inherent worth of all creatures. Unfortunately, though, just as long, people have participated in and observed man’s inhumanity to nonhuman animals.
  • First bullet: This is equivalent to approximately one dog in 4 of every 10 residences and one cat in 3 of 10. Or put another way, 63 percent of all U.S. households have at least one companion animal. Also, this is more than the number of human children living in the United States today !!! Many factors have contributed to this statistic, including couples having fewer or no children or having them later in life, and the growth of same-sex couples living together.
  • Here are some headlines from the last few years taken from a variety of local, national and international media sources. They provide a glimpse of the very real problems that animals encounter on a daily basis and that, at least in some cases, might be able to be eliminated or at least ameliorated through guardianship.
  • Here are some articles I excerpted from those headlines to show you just how disturbing some of this activity is. For example: (1) the zoo owner using a menagerie as his personal larder, (2) a rash of senseless animal dismemberings, etc., in a Midtown neighborhood in Tucson and (3) dog poisonings in city parks in Portland, Oregon, over leash vs. no-lease ordinances.
  • First bullet: Animals presently are regarded as property, and this needs to be revised to better reflect current societal mores regarding animals and to provide the opportunity for more diverse and numerous parties to advocate on animals’ behalf in courts of law. Second bullet: Presently the primary litigants you see in animal cases are private owners and public custodians (and occasionally concerned citizens). Third bullet: Guardianship would allow literally any concerned person or group of persons to advocate for animals’ interest by becoming a legal guardian of an animal ward .
  • First bullet: Temporary guardians would be appointed or accepted by the court to represent an animal or animals for the duration of a lawsuit or other court proceeding. Second bullet: Permanent guardians would be individuals or groups named “trustees” and charged with keeping an eye on their assigned ward or wards and ensuring a certain level of care throughout the animals’ natural lives. The latter already is being done with pet trusts.
  • I would further propose dividing guardianship into a two-tier system, which would be made up of: First bullet: Primary guardians , such as owners , custodians and caretakers , who would have significant authority over the nonhuman creatures they oversee; and Second bullet: Secondary guardians , who would have less say than a primary guardian unless and until a primary guardian shirks guardianship duties or overtly harms or neglects charge(s).
  • First bullet: B ut what happens when the ward is a nonhuman ? Will the courts still accord standing? Second bullet: They frequently were charged with and convicted of a variety of crimes, and often sentenced to die ! This was from the Ninth to the 19 th Centuries – started with the Greeks and the Romans; it also included inanimate objects at various times in history!
  • I would submit that surely nonhuman animals deserve at least as much legal standing as cans of tomato paste !
  • Citizen-suit provisions exist in a number of statutes that address animals, including the Endangered Species Act, which provides citizens with the ability to sue on behalf of animals where human activities have endangered or threatened a species’ survival or its habitat. However, even where citizens can file suit, plaintiffs can prevail only if they can show that they have been vicarious, indirectly harmed by an animal or group of animals’ own direct harms.
  • First bullet: Government entities charged with enforcing animal welfare laws often must contend with lack of minutes due to shrinking staffs, lack of money due to slashed budgets, and lack of political motive to ferret out harms or prosecute wrongdoers – no pun intended ( especially when animal welfare not a priority for that administration! ). Second bullet: Citizen suits exponentially increase enforcement opportunities for government entities by empowering and encouraging untold numbers of passionate, enthusiastic, volunteer “eyes and ears” to look out for our furry (and not so furry) animal friends. In other words, the individuals and groups with the most proclivity for discovering and reporting animal abuses to the appropriate authorities will be the ones “doing the dirty work,” so to speak, which is ideal from a societal cost-benefit standpoint.
  • First bullet: Drafted in 1990 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), the Uniform Trusts Act validates trusts for lifetime care of companion animals. Second bullet: By permitting one to set up a trust to provide for a pet not only after its owner/guardian dies but also while that person is still alive (say, via a life estate with remainder ), it in effect establishes a guardian-ward relationship. Third bullet: I can see animal trusts also being used when an animal owner is convicted of mistreating an animal, and a judge orders payment of a certain amount of money to establish a trust fund for animal’s lifetime care. Another scenario would be where a public trust fund is set up to reimburse victims of dog bites whose owners lack insurance or financial resources to cover medical costs and legal judgments.
  • Man discovered that “the eating of tasty animals” vastly expanded his formerly all vegetable, fruit and grain diet and also helped him survive. So it’s understandable that those who successfully hunted, captured and slayed game did not necessarily want to have to share the spoils of the hunt with persons who didn’t help put food on the table.
  • I would argue that even if animals are kept under the present legal category of property, they can and should be regarded as unique and in many ways superior to inanimate property. Why? First bullet: Most people do not discard their animals, particularly companion animals, as they might a refrigerator or couch that has gotten “old” or “run-down” or seems “boring” in comparison to a “newer,” “flashier” model. Second bullet: Most bankruptcy jurisdictions exempt household pets from the requirement that all personal property be liquidated to satisfy creditors’ claims in bankruptcy.
  • Response to No. 1: Animal owners already are considerably limited in what they can do to their animal property, based on anticruelty statutes at city, county, state and federal levels. In addition, guardianship does not take owners’ rights away or even diminish them but, rather, requires simply that the interests of owned animals be considered alongside owners’ interests. Response to No. 2: While many courts still balk at considering “best interests” of animal as they now must do for human children, the kinds of things needed by animals and human infants, for example babies not yet able to speak, are not all that different: Nutrients (milk/formula, later food &amp; water) Bathing/Grooming Toileting Basic nurture Safety Protection from temperature extremes and the elements Medical care, e.g., vaccinations, illnesses &amp; injuries Transportation; etc. Response to No. 3: Contrary to popular opinion, language can have a potentially dramatic effect on how we see things, especially over the long term. For example, while animal shelters and rescue groups increasingly refer to individuals’ obtaining a new best friend as “adoption” of a “companion animal,” pet stores and breeders still commonly term the transaction a “purchase and sale” of a “pet.” (Read Animal Awareness snippet here)
  • The “adoption” language brings to mind human-child adoptions, although of course adoptions of animals generally are much more simplified and the process much more abbreviated (although both have striking similarities, like home checks). The choice of language should not be discounted, however: Nowhere in the world can humans any longer lawfully own other humans, so the growing prominence of “adoption” type language in regard to animals seems to indicate a movement toward broadening recognition of legal rights for animals.
  • Guardianship for animals joan bundy for 2009 az state bar convention

    1. 1. Guardianship: Toward a more enlightened view of human-animal relationships and the law
    2. 2. <ul><li>“ The entire universe and everything in it, animate and inanimate, is His. Let us not covet anything. Let us treat everything around us reverently, as custodians. We have no charter for dominion. All wealth is commonwealth. Let us enjoy but neither hoard nor kill. The humble frog has as much right to live as we.” – Ishopanishad , a sacred Hindu text </li></ul><ul><li>“ The civilization of a people is indicated by their treatment of animals.” – Henry Bergh </li></ul><ul><li>“ Even a dog distinguishes between being stumbled over and being kicked.” – Oliver Wendell Holmes </li></ul>Some opening thoughts:
    3. 3. First, some interesting statistics: <ul><li>More than 100 million dogs and cats live in American households </li></ul><ul><li>As many as a third of all animal owner/guardians currently provide for their companion animals in their wills. </li></ul><ul><li>At least 80 percent of companion-animal owner/guardians permit their four-legged friend(s) to share their bed! </li></ul><ul><li>Battles in divorce proceedings over custody or visitation of a beloved pet are becoming as heated as those over human children . </li></ul>
    4. 4. If animals have it so good, why do they need guardians? <ul><li>“ A zoo owner is being investigated over allegations he ate his own wild animals…” </li></ul><ul><li>“ Two people find puppy near Green Valley skinned alive…” </li></ul><ul><li>“ Swedes have more and more animal sex…” </li></ul><ul><li>“ Phoenix-bound air traveler accused in ferret death…” </li></ul><ul><li>“ Dogs being poisoned in Portland, Ore., parks…” </li></ul><ul><li>“ Mystery criminals killing and mutilating cats in Denver and Salt Lake City…” </li></ul><ul><ul><ul><ul><ul><li>“ Many lost pets actually stolen [and used in illegal dogfighting]…” </li></ul></ul></ul></ul></ul>
    5. 5. If animals have it so good, why do they need guardians (cont.) ? (3) (2) (1)
    6. 6. So what would guardianship do that isn’t already being done? <ul><li>Revise the present “animals as property” scheme </li></ul><ul><li>No longer just private owners and public custodians </li></ul><ul><li>Any concerned person could become a guardian of an animal ward </li></ul>
    7. 7. Guardianship for animals isn’t so different from present legal regime <ul><li>It would be much like the framework already in place for “guardian ad litem” or “next friend” type advocates appointed by judges to represent the legal interests of: </li></ul><ul><ul><ul><li>Children in guardianship/custody battles </li></ul></ul></ul><ul><ul><ul><li>Mentally incompetent/insane persons </li></ul></ul></ul><ul><ul><ul><li>Mentally retarded persons </li></ul></ul></ul><ul><ul><ul><li>(and, at one time, even slaves )! </li></ul></ul></ul>
    8. 8. Short- and long-term guardianships <ul><li>Ideally, animal guardianship would include the ability to volunteer or be chosen by a court to serve as a: </li></ul><ul><ul><li>Temporary guardian </li></ul></ul><ul><ul><ul><ul><ul><li>and/or </li></ul></ul></ul></ul></ul><ul><ul><li>Permanent guardian </li></ul></ul>
    9. 9. Two-tier guardianship system: <ul><li>(1) Primary guardians </li></ul><ul><ul><ul><ul><ul><li>Owners </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Custodians </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Caretakers </li></ul></ul></ul></ul></ul><ul><li>(2) Secondary guardians </li></ul><ul><ul><ul><ul><ul><li>Individual citizens </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Nonprofit orgs, activist groups, PACs, etc. </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Corporations </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>Governments </li></ul></ul></ul></ul></ul><ul><ul><ul><ul><ul><li>The public </li></ul></ul></ul></ul></ul>
    10. 10. Is declaring guardianship enough? Or is ‘standing’ also needed? <ul><li>Guardianship presumes that the guardian has standing to advocate on behalf of their (human) ward </li></ul><ul><li>At one time, animals were deemed to have standing— literally ! </li></ul>
    11. 11. Why can’t animals have standing? <ul><li>In addition to natural persons, the law at one time or another has breathed juridical life into all of the following entities: </li></ul><ul><li>Government (nations, states, counties, municipalities, etc.) </li></ul><ul><li>Churches </li></ul><ul><li>Banks, trusts, foundations </li></ul><ul><li>Businesses (corporations, partnerships, joint ventures, etc.) </li></ul><ul><li>Slaves </li></ul><ul><li>Ships </li></ul><ul><li>and, yes, even cans of tomato paste* ! </li></ul>* U.S. v. 449 Cases, More or Less, Containing Tomato Paste , 111 F. Supp. 478 (E.D.N.Y. 1953).
    12. 12. Citizen suits: Guardianship in disguise? <ul><li>One way that already exists to challenge injuries to nonhuman animals is through the citizen suit . </li></ul><ul><li>An example: Endangered Species Act (ESA) </li></ul><ul><ul><li>National Association of Home Builders v. Babbitt , 130 F.3d 1041 (D.C. Cir. 1997) (Delhi Sands Flower-Loving Fly’s contribution to biodiversity deemed to have a potentially “substantial economic effect on interstate commerce”) </li></ul></ul><ul><ul><li>TVA v. Hill , 437 U.S. 153 (1978) (Snail Darter saved from dam inundation by “immeasurable” possible future value to society) </li></ul></ul><ul><ul><li>But see e.g. Lujan v. National Wildlife Federation , 504 U.S. 555 (1992) (lack of imminent, concrete plans to revisit habitats of Asian elephant and leopard and Nile crocodile killed members’ standing) </li></ul></ul>
    13. 13. Citizen suits: Like a million private attorneys general! <ul><ul><li>The 3Ms (limitations on government action): </li></ul></ul><ul><ul><ul><li>M inutes </li></ul></ul></ul><ul><ul><ul><li>M oney </li></ul></ul></ul><ul><ul><ul><li>M otive </li></ul></ul></ul><ul><ul><li>Private citizens as “whistleblowers” </li></ul></ul>
    14. 14. Pet trusts & guardianship <ul><li>18 states have ratified the Uniform Trusts Act , which includes animal trusts </li></ul><ul><li>Recognition of animal trusts supports the guardian paradigm </li></ul><ul><li>Animal trusts could be used in other ways besides estate planning </li></ul>
    15. 15. Brief history of animals & the law <ul><li>Animals as property – Man’s first attempt to exercise control over animals primarily coincided with his becoming a meat-eater! </li></ul>
    16. 16. Animals as ‘unique’ property <ul><li>People generally treat their animals differently (usually better) than they do inanimate objects – animals should have greater legal standing than, say, a toaster </li></ul><ul><li>Companion animals exempt from bankruptcy liquidation </li></ul>
    17. 17. Some arguments opposing guardianship (and responses) <ul><li>“ You are taking away our right to do whatever we please with our own property” </li></ul><ul><li>“ How on God’s green earth are we supposed to know what animals want or need if they can’t communicate it to us?” </li></ul><ul><li>“ What are you really accomplishing by simply changing a name?” </li></ul>
    18. 18. Examples of animal transactions beginning to use “adoption” language:
    19. 19. Conclusion: Guardianship <ul><li>The time has come for the law to reflect humans’ growing understanding of animals as sentient beings and, in many cases, family members, who, at the very least, deserve: </li></ul><ul><li>Respect </li></ul><ul><li>Consideration of their unique needs </li></ul><ul><li>And, most of all, freedom from suffering. </li></ul>

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