Incitti v. Ferrante case brief

Incitti v. Ferrante
Court of Common Pleas of New Jersey, Bergen County, 1933.
12 N.J. Misc. 840, 175 A. 908

ISSUE
-P sues D over promissory note alleged to have been made by D for 15,400 Italian Lires.Is the note negotiable?     
RULES
The note is negotiable in form unless the provision for payment of Italian Lire makes it non-negotiable.  
-To be negotiable, an instrument must contain an unconditional promise or order to pay a sum certain in money.What is money?    Money is purely a legal institution; it is impossible without law.
-Money is what the law or custom makes receivable for payments of taxes and debts.  
-An instrument payable in the money of any country is negotiable for in all these cases the sum of money is fixed by the par of exchange on the known denomination of currency with reference to the par.  
-Where a note is made payable in a country in the money or coins of another country, which money or coins have a value fixed by the law or under the authority of the law of the country where the note is payable, and which value can by a simple mathematical calculation be expressed in the value of the lawful money of the latter country, such a note by the rules of the law merchant and under the Uniform Negotiable Instruments Act is negotiable.

HOLDING:
-The contract sued upon here is a contract for the payment of money, not a commodity.
-This note was made for a sum certain, because a note for any number of Italian Lire is only another form of expression for the equivalent in dollars, which equivalent is now established under the authority of the legislation previously referred to.


KINDS OF NEGOTIABLE INSTRUMENTS
1. Promissory note
-a promise to pay money
•unconditional promise in writing made by one person to another signed by the maker
•engaging to pay on demand,or at a fixed or determinable future time a sum certain in money to order or to bearer
•where a note is drawn to the maker’s own order, not complete until indorsed by him (Sec. 184, NIL).

California v. Greenwood case brief

California v. Greenwood (1988)

Petitioner: State of California

Respondent: Mr. Greenwood; Greenwood was suspected of selling and using drugs in his house. A narcotic officer asked a trash man to bring her the trash bags which Greenwood had placed out on the street to be picked up. In those trash bags, the officer found drug paraphernalia which was used as evidence to convict Greenwood. The lower courts overturned the conviction by stating that the search of the trash bags without warrant violated the Fourth Amendment.

-The trash bags were sealed up and they were plaque, so their content was not visible to the public. Also, Greenwood had placed the trash bags out on the street and that was beyond his curtilage.
-Curtilage defined: house, backyard, front yard, etc.

Issue:
Katz Test:
1. Did the defendant have a subjective expectation of privacy in the trash bags?
2. Is the society ready to accept this expectation as reasonable?

Holding:
1. Yes
2. No

ANALYSIS:
-The trash bags were placed out on the street and they were accessible to children and animals.
-Greenwood could not have a reasonable expectation of privacy in the trash bags placed outside his curtilage where any animal or child can unseal and expose the content of the bags to the public.
-The court stated that "the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public."
-The court decided that even though Greenwood had subjective expectation of privacy in those bags, this privacy was not objectively reasonable.

Lalli v. Lalli Case Brief

 Lalli v. Lalli (US 1978)

FACTS: An illegitimate child seeks, through intestate, to inherit his father's estate. Significantly, the father & son had every other aspect of the parent-child relationship.An NY law excludes P from instate succession because he didn't prove paternity during the dad's lifetime. The Sup. Ct. upholds the law.

REASONING:

•The statute promotes the orderly disposition of property.

•The court wants to prevent frauds.

HOLDING
States may not impose an S of L on paternity suits. (Strongly suggested in the ct.'s holding.)

Animal Law Outline

 

ANIMAL LAW

1. DEFINING ANIMAL
2. TORTS
3. PROPERTY
4. CONSTITUTIONAL LAW
5. CRIMINAL LAW
6. ANIMAL WELFARE ACT
7. ENDANGERED SPECIES ACT
8. MISC.

1. DEFINING ANIMAL: Arbitrary delineation. Answer often crucial to outcome of cases. Holdings are unpredictable and often counterintuitive.

1. Roosters (and Cockfighting: States all over the place)
   1. NM: yes
   2. OK: no
2. Goldfish
   1. MA: yes
3. Deer
   1. NM: no
4. Bird, Rats and Mice
   1. Research Facilities (Federal): No
   2. CA & most states: Yes

2. Reasonable Person Standard: Would average Joe know this was an animal? Lock (OK 1963) (p. 35): Rooster not animal because average person wouldn’t consider it so.

3. Domestic versus Wild: Decisions often based on historic perspective and result-oriented. Leads to difficult in advising clients on likely outcome. Often varies state-by-state. Economic interests protected by courts. May also depend on where we live and what year it is.

1. Judging Species v. Individual Animal: Most courts will look at species as whole, not individual animal.

1. Individual: City of Rolling Meadows (IL 1986) (p. 57) re monkey is exception. Upside is looking as animal as individual, which is revolutionary. Downside is that may be endangered animal and should not be kept as pet. Issue that domestic animal can also be made wild again.

2. Species: Gallic v. Barto (PA 1993) (p. 61): Ferrets judged as species. Wild with domestic tendencies. Turns to history of animal used by people for hunting. Case doesn’t outlaw possession of ferret, but these kinds of decisions lead to statutes outlawing them.

1. Turkey
   • MI: domestic
2. Cow
   • LA: domestic (insurance issue)
3. Cat
   • PA: Not domestic
4. Dog:
   • PA: Domestic
5. Monkey
   • IL: Domestic
6. Ferrets:
   • PA: wild (with domestic tendencies)

2. TORTS (Chapter 3): No controlling law.

1. Somewhere Between Animal and Property: These cases are demonstrating/grappling with traditional notions of market value v. non-property view that animals are person-minus or property-plus. On both sides, there’s agreement that they’re different. Attempt to break mold. Can work from within system. Notion that animals have inherent value.

2. Suffering of Animal: To argue for suffering of animal itself is a losing tactic. These cases are more about convincing courts to place value on relationship with animal, then move to fight for animal’s interests. There is an acknowledgment of animals interest re placing trusts or assigning guardians for animals. Each of these cases is piece of puzzle. There are also statutes that allow for award of damages for ED/loss of companionship above and beyond what normally allowed.

3. Relationship Between Animal and Human:
   1. T-Bo Act (TN p. 757) If pet killed or injured from unlawful or intentional or negligent act of another, entitled to non-economic damages. Death or injury must be on owner’s property or while under control and supervision of owner or caretaker. Doesn’t apply to vet injuries. Limited to $4,000. A move forward by recognizing that relationship exists, but at same time vet limited.
   2. Recovery for Non-Economic Loss in Other States: CA law opponents are vets and people who just say a dog is just a dog.

4. Causes of Action:

1. Negligent Injury to Property

2. Malicious Destruction of Property/ Malicious Killing of Pet
   1. La Port (FL 1964) (p. 115): Garbage collector threw garbage can at small dog, killing it. Court determined that behavior malicious and demonstrated extreme indifference to right of petitioner. Cause of action unclear. May also include NIED, malicious killing of pet. Even though P suffered no physical injury, court awards damages for emotional suffering. Clearly takes into account significance of dog-master relationship.
   2. Defenses: Really just NIED.
   3. Not a lot of caselaw on this point, but not a point courts would be totally averse to adopting because of intentional act, therefore awarding tort-like damages. Usually not ED damages for property. ED component in these cases is the idea to education and increase appreciation of connection between animals and people, not to get money (special relationship between people and animals that’s greater, animals somewhere between people and property).

3. Wrongful Withholding of Property/Wrongful Disposition of Body
   1. Corso (NY 1979) (p. 119): Vet failed to turnover remains to funeral home. Delivered cat instead. Court said pet more tha property, less than person. P entitled to damages based on value of do beyond FMV since dog already dead when tort committed and normally P entitled to nothing because do worth nothing dead. Animals are “special.” Reject Heirloom Value.

4. Negligent/Intentional Killing of Dog

5. Bailment
   1. Bailor: Pet owner
   2. Bailee: Kennel owner, vet
   3. Property doctrine
   4. Presumption of negligence
   5. Very powerful
   6. Brousseau (NY 1980) (p. 120): Dog died in kennel. Sued under bailment. Presumption of negligence. Court said P entitled to damages for value to owner, not FMV.

6. Assault and Battery: Fringe arguments made only occasionally. Black letter law says assault does not require touching.

7. Emotional Distress: HI and FL have most favorable caselaw.

1. ED for Negligent Destruction of Property:
   1. HI Only: Campbell (HI 1981) (p. 99): ED requirements much more flexible. Emotional distress damages awarded to owner when animal dies in quarantine’s custody. Court says does not open floodgates because there are a no economic incentives to bringing g suits.
      • Don’t need medical proof
      • Don’t have to witness death.
   2. Majority: More difficult to prevail if P cannot meet the requirements to establish intentional, as opposed to negligent, infliction of ED or some other intentional tort. Flood-gate argument.
      • Gluckman (NY 1994) (p. 126): No ED for property.

2. Pain and Suffering of Animals: No court is awarding damages for this.
   1. Gluckman (NY 1994) (p. 126): Not a cause of action.

3. NIED:
   1. Must be close relative
   2. Witness to Event
   3. Zone of danger
   4. Public Policy is to limit damages, except in limited cases. Why are we allowing damages where we didn’t used to for special relationships? Why not expand to domestic partners? Pets?
   5. Johnson: Dog killed by speeding car while owner was walking it. Court said no recovery for emotional distress. Dog was property. Policy reason of limiting litigation. NIED only for witnessing 1^st degree relative. Can be distinguished from Brousseau and Corso because no valuation.
   6. La Port (FL 1964) (p. 115): Garbage collector threw garbage can at small dog, killing it. Court determined that behavior malicious and demonstrated extreme indifference to right of petitioner. Even though P suffered no physical injury, court awards damages for emotional suffering

4. IIED:
   1. Requirements: Very hard standard to meet. Must be egregious, way beyond common decency.
      • Conduct that is extreme, outrageous , shocks the conscience
      • Intentional
      • Must be directed at person.
      • Injury/damages
   2. Hard to win. Needs to meet outrage standard .Must also prove damages.
   3. An intentional tort: Can get punitive damages (up to jury).
   4. Does not consider animal’s suffering.
   5. Burgess (KY 2001) (p. 112): Horses sold to slaughter. Court awards money damages for IIED. Proves damages with nightmares, emotional distress and relationship with animals.
   6. Gluckman (NY 1994) (p. 126): No IIED because not directed at P.

8. Veterinary Malpractice: No federal law.

1. Requirements:
   1. Duty: Always implied.
   2. Breach: Failure to exercise appropriate standard of care
      • This is the big issue.
      • Expert witness necessary
   3. Causation: Vet’s departure from standard of care was proximate cause
   4. Damage

2. Pro: Animals treated more like people
3. Cons:
   1. Animals considered animals when convenient to D
   2. Raises cost of litigation
   3. Difficulty in establishing standard of care: code of silence of profession.
   4. Harder to prove than bailment.
   5. No doctor-patient relationship, No professional human relationship
   6. Record keeping and Proof problems
   7. Eliminates bailment, assault and battery, negligent injury to property and other tort claims.

4. Posnient v. Rogers (UT 1975) (p. 144): Mare gives birth, rendered infertile by vet exam. Vet found not liable because P’s own expert says no breach of standard of care for local community.
5. Price v. Brown (PA 1996) (p. 141): Dog died after surgery. Vet promised overnight monitoring. Court dismisses case because must claim N, not breach of bailment agreement. P asserted liability on theory of bailment. Dissent says bailment okay.

5. Assessing Value of Animal

1. Minority: Expansive Approach: Actual Value
   1. Peculiar Value: Allows victim to value property when hard to figure out how much worth.
   2. Real Value
   3. Green v. Leckington (OR 1951) (p. 117): If no FMV, then would consider actual value to P. Ironically, if dog worth nothing, might be worth more. In this case, there was a FMV of dog killed for chasing chickens.

2. Majority: Fair Market Value: May be zero

3. Heirloom Value:
   1. No market value, but lots of persona value
   2. Do would have to know object worth a lot to P.
   3. Could be good especially when dog dead (withholding of body)

4. Factors to Consider:
   1. Safety-protection provided by pet
   2. Value of training
   3. Special training
   4. Companionship/Emotional connection
   5. Therapy Avoided
   6. FMV
   7. Age
   8. Pedigree
   9. Lineage
   10. Neutered

6. Injuries By Animals

1. Common Law Rule: SL for damage by livestock unless livestock on way to market, in which case only N standard. Cats and dogs allowed to roam freely without liability except if doe enters land with livestock.

2. Premises Liability
   1. Duty to maintain
   2. SL for wild animal exhibition
   3. Chance v. Ringling Bros. (1970) (p. 157) This is about duty of business owners to invitees to keep property safe. General rule is that the owner of a domestic animal such as a dog is not liable for its vicious conduct unless the owner had knowledge of its dangerous disposition. Nonetheless, even gentle animals are likely to be dangerous under particular circumstances and owners/business must exercise reasonable care to prevent foreseeable harm.

3. Participants in activities involving animals
   1. SL for wild animal exhibition
   2. Erych v. Robert Earl (1985) (p. 152) 5-year old boy killed by jaguar at circus. Court holds circus organizers, not just animal handler, liable. Parallels to products liability. Court applies SL. No expert testimony required because jaguars present a manifest danger. Anyone benefiting from ultra-hazardous activity is liable.

4. SL for Animals Know to Be Dangerous or Wild: If knew or should have know dangerous propensity. (Eggshell P doesn’t apply here.) Must decide in these cases if there is a dangerous propensity. Jumping on people not SL because not necessarily dangerous conduct.
   1. Baugh v. Beatty (1949) (p. 150) 4-year old bitten by chimp at circus. Court says D should be held to SL standard because animal of a known savage and vicious nature because wild. P wanted N because lost under SL. A-Nu not applicable because chimp not inanimate and P not trespasser. If wild, SL standard.
   2. Pullan: Statutory exception. Court declined to extend SL for biting dogs to biting horses.

5. N Standard for Dogs Not Known to Be Dangerous and Negligent in Preventing Harm: The middle ground. Injuries from “normal” consequences of expected behavior (i.e., jumping).

1. “Expected Behavior”
2. “Typical of Animal”
   1. Breed?
   2. Species?
   3. Other criteria?

3. Drake v. Dean (1993) (p. 162)Pit bull attacked Jehovah’s Witness. Court says D should be held to Negligence standard. Owner of a dog not previously vicious or dangers are liable in negligence for failure to control the animal because it is foreseeable that such a dog will jump on people and knock them down. In most cases, there would be no liability for Bandit’s first jump (if he has no habit of jumping on people). If an animal exhibits propensity for normal activity known to species or breed, then owner liable for injuries from these normal activities. Biting for dogs not usually considered normal activity. Common law is first bite rule—if dog bites for first time, no liability. Foreseeability is supposed standard.

6. No Negligence for Injuries from Unknown and Unexpected Acts
   1. Statutory exceptions

3. PROPERTY (Chapter 2 & 8)

1. Generally: Animals considered property.
   1. Property-Plus or Person-Minus? On both sides, there’s agreement that they’re different.
   2. Torts: Vast majority of courts still decide tort cases involving harm to companion animals from a purely economic standpoint. A growing number, however, are considering whether animals should be treated differently from inanimate property.
   3. Main notions: Animals dealt with differently when owner dead than when alive. When alive, can kill dog whenever they want. Courts conflict with this general notion when they say kill my dog when I die, conflicts with general notion of respecting testator’s wishes. Animals as property getting special treatment under law. Tougher question: reason court says save the animal, court overruling destruction of animal for public policy reason, or trying to get into mind of deceased testator: (not on exam) what if testator said I’ve been connected with dog my whole life, I want it buried with me in my casket (this would conflict with idea of really getting into person’s intent).

2. Provisions Requiring Destruction of Animals Upon Death
   1. Cy Press v. Saving Animal: Fundamental principle that should carry out testator’s wishes in tension with unnecessary destruction of property.
      1. Competing pubic policy: Protect testator’s wishes (property rights) versus not wasting property. Easier for latter to trump once owner dead
      2. In contrast to other body of law, these animals’ interests weigh so heavily on the judge’s.
   2. Brand Estate (VT 1999) (p. 715): Owner wanted horses destroyed after death. Court looks to other states for public policy guidelines. Pets aren’t regular property. Should preserve lives unless absolutely necessary. Public policy and state law support allowing animals to live.
   3. Side (CA 1989) (p. 720): Testator committed suicide, didn’t think dog could go on without her. CA legislature adopted statute specific to Sido to save its life.

3. Provision for Care of Companion Animals

1. How to Avoid Problems: Best thing is to give animal outright as gift and then give sum of money for that person so that other relatives can’t come in and protest such a large sum being given to animal and not person.

2. Cannot Leave Money to Animal Directly: You would have to leave it to trustee for animal. The trustee, though, can go ahead and disregard instructions, using money as they wish and doing what they want with the animal.

1. Honorary Trust: Created for purposes of caring for animals. On their honor to act on animal’s behalf. Not enforceable.

2. Lyon’s Estate (p. 729) Court said could only be an honorary trust. Trustee willing to follow instructions. Doesn’t follow 2^nd Restatement. Court says provisions of the will with regard to the animals should be carried out if it can be done. A common sense approach. Yet seems overly intrusive on testator’s will. Court says that the entire 1.4 million, or a substantial portion of it, may be retained to benefit the animals is patently unsupportable. Reducing the amount over which the executors have such power is, therefore, justifies on the theory that testatrix mistook the amount of money necessary to provide for the animals.

3. Companion Animal Trusts Under Modern Statutes: Within the next few years, the law re wills and trusts will be quite changes. CA has adopted UTC. Some of the most exciting news to happen in animal law.

3. Rules Are Mushy: Courts get to desirable end, but not advancing the law. Courts sidestep important issues along the way. Courts don’t leave precedence.

4. RAP: Animals not life in being, so cannot be measuring life. Howell’s Estate (p. 722)

5. Courts See Animals as property, part of estate.

4. CONSTITUIONAL LAW (Chapter 1 and 4)

1. Equal Protection: Crowder v. Kitagawa (p. 3): EPC issue re rights of disabled. Balancing of burdens.

2. Procedural Rights for Animals:
   1. Ecclesiastical Court System in England
   2. In U.S. today: nonhuman animals are no longer accused, arrested, or convicted in courts of law for cries against man or against other nonhuman animals. Owners liable instead. P. 11.
   3. New Zealand Plan for Great Apes: Right not to be subjected to torture or cruelty. Right not to be used for scientific research. Example of speciesism by animal rights community. A place to start. p. 21.

3. Justiciability: Propriety of action in court.
   1. Standing
   2. Mootness: Dispute over.
   3. Ripeness: Adversaries and there is a dispute.
   4. Political Questions
      1. Jones v. Beame (NY 1978) (p. 228) Two consolidated lawsuits because legally, both Ps are trying to have court rule that executory misallocating funds. Court say this is a political question that they cannot address. Ps argue that if executory violating rights of Ps, rights of Ps or cause cruel treatment of animals then Courts have authority to and duty to determine if executory violated law. Animals and mentally both wards of states, at mercy of executory. That these two are being consolidated is interesting and perhaps even possible. Court says that if anyone has standing to bring these cases it is the plaintiffs. Standing not issue. Political question is at issue.

4. First Amendment: Some killings by animals are acceptable, others are not.

1. Religion: Church of the Lukumi Babalue Aye v. Hialeah (1993) (p. 335) City ordinances specifically targets religion is prohibiting animal sacrifice. Court says ordinances violated free exercise of religion rights, 1^st Amendment. Church members probably could have been prosecuted under animal cruelty statutes (didn’t need ordinances). Ordinances both under- and over-inclusive.

2. Free Speech: Jones v. Butz (p. 348) (1974) Humane Slaughter Act gives two methods of acceptable slaughter: (1) anesthetized before hung up or (2) Kosher slaughter (hoist and then kill). #2 seems more like exception, although court says it’s also humane as an option. Court decides legislature says it’s humane, so court cannot question legislation. P’s problems is not challenging as arbitrary and capricious.

5. Hunter Harassment Acts: Make it illegal to harass hunters. Harassers have created big tension between 1^st Amendment rights and hunters’ rights. Tactics include standing in front of hunters. Analysis always under 1^st Amendment (freedom of speech). These laws have created lots of litigation. Before these laws, other means of litigation, such as trespassing, assault. Most big hunting states have enacted HH laws. In wave of litigation, some laws found appropriate, others not.

Highest Protection Lowest Protection
Pure Political Speech (Content-Based) Time Place Manner	Expressive Conduct	Non-Political Speech	Non-Expressive Conduct / Fighting Words
	 Harassing Behavior Falls Here

1. What are the specific acts of the individual(s) accused of interfereing with or harassing hunters? Is there some verbal or speech component? How much of each aspect? What is conduct penalized? Where on continuum does it fall? Is there a speech element? State can always make content-based regulation. States always try to argue that HHAs are neutral, non-content based laws

2. What is intention? Provide message calls for greater protection that harming. Crucial question is where conduct takes place. Can criminalize even content-based protest if in area where animals hunted, can’t interfere with acts in preparation of hunting. Under content-based prohibitions, must have legitimate state interest. Can only really interrupt act of hunting which begins when enter park. Can’t use words that are specifically persuasive words. Court sometimes look at motive of legislatures in enacting laws

6. Standing: Very important area. Standing is hurdle to most claims that can make significant changes. Reason for standing is bar collusive lawsuits and to make sure sides will vigorously advocate for their side. Threshold doctrine—first question court is supposed to ask. Court can even bring it up if D doesn’t. Because it is a threshold doctrine, courts are not supposed to consider merits.

1. State Court: Must lower standard. Problem is that most cases must be tried in federal.

2. Federal Courts: Higher standard. Animal rights Ps prefer federal courts because more likely to find judge willing to expand law (because insulated from elections). Animal rights Ps lose regularly in federal courts, though, especially on issue of standing.

3. Federal Standing Requirements: Based on Article 3 § 2. “Case and Controversy”

1. Injury In Fact: Classically economic injury. Most challenging to these cases. EXAM: Explain injury, explain why not emotional distress. Definition in Sierra.

1. Aesthetic Injury: Gives standing. Witnessing (seeing carcasses, seeing depletion of animals).
   • Immediacy
   • Imminence
   • Direct Sensory Impact
   • View currently is that witnessing diminution of numbers of animals leads to standing. Must demonstrate witnessing to damage to population. If not someone who works with animals, must show actual viewing/witnessing.

2. Emotional Distress: No standing.

3. Economic
4. Professional

2. Causation
   1. Connect directly whatever alleged wrong is to alleged injury
   2. There will probably be some wiggle room for D:
      • Case involving government’s refusal to act under ESA. Injury is attenuated. Is it still going on? Is harm going to be redressed by litigation or will it happen anyway?

3. Redressability: If action requested won’t fix problem, cause of action not redressable.

4. Prudential Limitations: If case under ESA, no prudential limits)

1. No Generalized Grievances: Asking executive to enforce law is not enough. Must have an individualized grievance. Generally with animal law Ps, can identify individual grievance. Question is just will court “pierce the veil” and argue that P just trying to enforce law.

2. No Third Party Suits

3. Zone of Interest Test: Whether particular P should be heard to complain of a particular agency decision. P’s interest must not be so marginally related to or inconsistent with the purposes implicit in statute that cannot reasonably be assumed that Congress intended to permit the suit. Whether Congress seemed to be intending to benefit P’s interest. Overlaps with germaneness. Sometimes more rigid than germaneness. This is not a very restrictive test. If only animals could sue, we would have no litigation!
   1. Example: AWA statutory purpose is humane care of animals. Research files suit. Does she pass test? Not an animal, but works with lab animals. Could argue either way. Parallel to germaneness test for organization. Could argue AWA intended to protect animal, not people.
   2. Example: ALDF’s desire to disperse information not within zone of interest.

5. Organizational Standing

1. Members Can Sue: At least one of the members possesses standing to suit in his own right. Usually easy to meet?
   1. Article 3 Requirements Met)
   2. Prudential Limitations

2. Germaneness: Pertinence between litigation and organization’s purpose. There interests that the suit seeks to vindicate are pertinent to the objectives for which the organization was formed. Look at by-laws, constitution of organization.

3. No Individual Members Needed: Don’t have to establish that individual members needed for remedy. Neither the claim asserted nor the relief demanded necessitates the personal participation of affected individuals. No particularized injuries, whether it’s economic, aesthetic.

4. Advantaged of Association Suits:
   1. Can draw upon a pre-existing reservoir of expertise and capital
   2. Attract members whose primary reason for joining to often to create an effective vehicle for vindicating interests that they share with others.
   3. Organizations possess a self-policing mechanism guaranteeing a modicum of fair representation.

5. Informational Standing: Very restricted. Statute has to be information standing. Group bringing claim must have information as primary objective. Statute needs to be somewhat tailored to providing information. Zone-of-interest question.

6. Administrative Procedure Act (APA): Provides a person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statue to judicial review. If a person wants to sue a federal agency, he usually looks to the APA only if he is afforded no citizen suit provision by the underlying statutes.

7. Endangered Species Act (ESA) Citizen Suit Provision: Seemed to have eliminated Article 3 Requirements. Scalia changed that 20 years later. This does, though, eliminate prudential limitations. Argument was that expanded injury-in-fact requirement.

8. National Environmental Policy Act (NEPA): Another avenue to go after government for animal and environmental plaintiffs.

9. No Injury: Sierra Club v. Morton 1972 (p. 231) Remains the seminal case for standing issues in environmental and animal protection quarters. Injury is harm to Mineral King but legal claim is that D did not follow administrative procedure. S. Ct. said no standing. P must suffer injury themselves. Special interest in problem not enough. P must show he is adversely affected—must have direct stake in outcome. Ps must do more than try to vindicate their one value preferences. Requires that person has been to location at issue. Court trying to grapple with notion of who has proper adverse interest to bring lawsuit.
   1. Douglas Dissent: Inanimate objects should have some voice through people who have meaningful relationship with it. Congress does not have power to stop undesirable action because of special interests. Who gets to do this? First up to the plate?
   2. Blackmun Dissent: Sierra Club should be allowed to amend its complaint to meet the specifications the Court prescribes for standing.

10. No Injury: Animal Lovers Voluntueer Ass’n, Inc. v. Weinberger (9^th Cir. 1985) (p. 244) Goats eating endangered plants on San Clemente Island. Navy kept violating consent decree not to shoot them. Lower court said no standing except where effecting location P had visited; constitutionally non-cognizable emotional injuries. Injuries to recreational interests not covered by environmental laws. No standing because Ps could not see goats being killed.

11. Not Germane: Humane Society v. Hodel (D.C. Cir. 1998) (p. 246) Humane Society and one member bring suits because needs to show that one member could bring suit on his own. Issue is germaneness. P says aesthetic injury because of seeing dead animals, seeing less animals. Reverses lower court and says P does have standing. Germaneness became much more flexible. P’s members’ having to witness dead animals and environmental degradation is aesthetic interest suitable for standing.

12. Aesthetic Injury Not Imminent: Lujan v. Defenders of Wildlife (1992) (p. 263) New regulation limits ESA applicability to U.S. P’s problem is that federal government can send money to countries not honoring ESA. Direct effect of change in regulation is on Egypt, Sri Lanka, wildlife there. Direct effect not on Ps. Affects them indirectly, so standing is substantially more difficult to establish. Lacks imminence requirement of aesthetic injury. Basically saying that if Ps had plane ticket to go back, then would have standing.

13. Animal or Citizen Suits Not Allowed: Citizens to End Animal Suffering (1993) (p. 277) Claim against transference of dolphin. Court said no standing. Issue: Is transfer, purchase or sale of already captive dolphin “taking” under Marine Mammal Protection. Ds argued that MMPA meant to be directed for animals in wild, do no permit necessary. Court says MMPA does not authorize suits brought by animals or citizen suits. Ps claim: Court says animals can’t sue and people speaking for animals can’t either, so this means there is no judicial way of enforcing MMP.

14. Generalized Grievance, Lack of Imminence, and No Informational Standing: ALDF v. ESPY (1994) (p. 291) Birds, rats and mice case. Even though “animal” means animals in research, 95% of research activities not regulated because of 1988 exception of birds, rats and mice.
    1. Plaintiff 1: Researcher has no standing because not presently injured, no imminence; not clear will have to/will return to research. She said “will be required” to return to research. Court says wholly within her control. Court seems to look at merits of the case, which shouldn’t be doing. None of the court’s business why she took time away from research.
    2. Plaintiff 2: Attorney and member of oversight committee under AWA claims injury is cannot perform duties because no guidance. Causation: not given guidance. Redressibility: does get guidance. Court says this is a generalized grievance. It is very arguable that P2 has more specific, individualized grievance. He didn’t say there was an injury in fact—like losing money, threatened to lose his job. He didn’t say he had aesthetic injuries for some reason. Committee he is on represents interests of all, therefore he is like anyone else and it’s a generalized injury.
    3. Plaintiff 3: Organization. Informational injury. Court says statute not mean to cover informational injuries, hence does not pass zone of interest test.

15. Economic Injury Gives Standing: Bennett v. Spear (1997) (p. 300) Plaintiffs are ranchers, objecting to biological opinion that says fish should be protected. Interests are economic. They do have standing. They have to satisfy Art. II but not zone of interest. Citizen suit provision of ESA means that you still have to satisfy Art. III but congress has waived prudential limitation (zone of interest). Anyone can sue under ESA if they have a beef with ESA. No problem with injury in fact.

16. Aesthetic Injury Leads to Standing: Glickman (1998) A big win on standing. Didn’t fare well on merits. P visited roadside zoo and not happy with your treated. Brings claim that government not enforcing standards of humane treatment. Claims aesthetic injury. Satisfies proximity in time as well as aesthetic interest based on upteen years of watching animals. If anything should have less standing thank Knowles in ESPY. Majority said that DA’s failure to enact guidelines leads back to Jurnove’s feeling of inhumane treatment.
    1. “Humaneness” Standard Arbitrary: Dissent: (Sentelle—writer of ESPY) How do we decide what is inhumane? Can’t have court enforce law based on one person’s view of inhumane treatment. Cries out for objective standard for aesthetic injuries. Injury argument is weakest: if can’t identify animal that’s being injured and problem can’t be specifically identified, then you never pass standing. Again goes to merits of case. “Lowering standards of standing.”

17. Researchers Have Aesthetic Injury: Alternatives Research & Development Foundation v. Glickman (2000) (p. 325) Another victory for standing. Only difference between P here and P in ESPY is that currently involved in work, imminent injury is clear. Not particular animal but suffering in general is enough. Doesn’t matter where see suffering. Just because involved in research that hurt animals doesn’t mean exempt from complaining about government’s conduct not properly protecting animals. Best Ps found in research labs, zoos. Researchers are scientists in contact with scientists involved in animal rights.

18. Injury is Potential Economic Loss or Criminal Charges: Humane Society v. Lyng (1986) (p. 329)Face branding case—all female cattle had to be branded with hot iron on face to keep contracts. P argues unreasonable, arbitrary, capricious because it is inherently inhumane and therefore unreasonable method of marking and better alternatives exist. Ps feared would be subject to animal cruelty statutes if branded cows this way. Alternative was not comply and not be accepted into government program that pays farmers not to milk cows because of over supply of milk). Inspectors has to stop cows from the road. Expert testified that process is painful and inhumane, other alternatives exist. Ps are farmers and Humane Society.
    1. HS’s basis for standing: injury. The regulation will cause cruelty, which they are empowered to enforce against. They are authorized to prosecute in this location. Not cruel yet—not violent yet. Today. Might not have injury-in-fact.
    2. Burdicks’s basis for standing: If they don’t brand, lose funds. If they do brand, could be prosecuted for cruelty. Also could have an aesthetic injury. Don’t want to be involved in inhumane process. Here, they don’t have to do program, it was optional. (Could argue haven’t has to brand yet, haven’t been prosecuted, no one has said yet that there is cruelty.) They’ll go out of business, again, today, might not work.
    3. Court determines that this is cruelty. Ps experts say it’s cruel, painful, stressful, etc., and that freeze branding is better. Judge just had to make judgment call—may have relied on his own morals rather than the law. Many other agricultural processes are as cruel or crueler but considered justified.

5. CRIMINAL LAW:

1. Animal Cruelty Laws: Intent of statute is to uphold morality, humanitarian feelings. Knox (MA 1981) (p. 24)

1. Criticism: Often vague, confusing, for having many exemptions for industries using animal. Outcome in AC cases really depends on jurisdiction, facts, judge. Harder line is once you take on responsibility of taking care of animals, you are held to the strict standard of AC standard.
   1. Often Challenged on Vagueness:
      1. People v. Bundt (1983) (p. 407) Man repeatedly beat dog. D challenged statute as too vague to understand (Due Process claim). Usually D will challenge statute as too broad or too vague and therefore D not on notice. If law is flawed in this way, D can’t understand law and too much discretion given in enforcement.
      2. People v. Speegle (CA 1997) (p. 431) D hoarded 200 poodles, one cat, and three horses. D contends statute unconstitutionally vague. Court held statute not vague. Challenge to unconstitutional vagueness comes up a lot, especially useful in threshold cases. This was clear-cut cruelty, though, because of extreme deprivation.

2. Killing Dilemma: Some killing okay, some not. This issue plagues cases and makes them difficult.

3. Forfeiture Issue: More recent development—powerful tool—can even forfeit without criminal conviction. Can do it civilly with lower standard of proof.

4. Often Underused: Because of burdens on prosecutors, pressure to bring human cases first. Movement to allow citizens/groups to initiate cruelty prosecutions in 8 states.

5. Animal Abuse Linked to Violent Crimes: Demonstrated link between animal abuse and criminal’s willingness to harm humans. This is powerful argument from stronger laws for animal abuse. Also, kids who abuse animals are often abused themselves.

6. Malice Toward Animal versus Malice Toward Owner:
   1. Must Be Toward Person: U.S. v. Gideon (MN 1856) (p. 49): Charged with criminal and willfully killing dog. Refused to sustain indictment without proof of malice toward animal.
   2. Can Be Toward Animal or Owner: People v. Dunn (CA 1974) (p. 41): Malice toward owner not required. D convicted of Animal Cruelty when he shot, killed and wounded several neighbor’s animals feeding on D’s property. D had never complained before to owner. Court determines that requisite malice could be against owner or animal. This advances cause of animals. Recognizes the ability of animals to be hated and feel. Advances notion of cruelty laws. This court and most courts says first attempt to address problem is to take reasonable means, preliminary steps prior to killing animals. Recognition of what the land owner has to do with intruding animals.

7. Cruelty Defined
   1. Overdrive
   2. Overload
   3. Torture
   4. Cruelly Beats
   5. (Don’t need to say “unjustified” here since it’s implied.)
   6. Overdriving: People v. O’Rourke (p. 426) Overdriving lame horse. Malum prohibidum. Court cites Bible to support idea that this has always been wrong, but really only wrong because it’s in the statute. Failure to give medical care and making horse work when lame, even with notice (brought to his attention several times) = neglect because he knew horse was lame, had requisite culpable mens rea. He doesn’t fit any exemption. Main reason for guilt is repeated violations and definite knowledge. Unusual case because it’s a failure to act as opposed to affirmative conduct.

8. Unjustified/Unnecessary
   1. Injure
   2. Maim
   3. Mutilate
   4. Kill
   5. People v. Voelker (1997) (p. 416) Kills and eats iguanas on T.V. Accused of killing unjustifiably. Court says only justification is in protection of property. D in more protected area. Why was his actions wrong? Motive? Kind of animal? Hard to justify. Case is problematic. How do you distinguish cooking show from animal cruelty? Torture issue: is this torture? His motive may be entertainment for TV, but usually torture implied prolonged pain, so not really issue of torture here. More of a killing issue: Court says proper justification would be protection of property. (Seems like a totally random pulling out of on justification—probably issue of court just not liking D or his actions and trying to come up with a way to say it’s wrong.) Seems arbitrary, when compared with a cooking show where they kill lobsters, for example. Problematic for cruelty cases. This case less flagrant than crush cases.
   6. People v. Thomason (p. 419)Crush video case. D argues actions justified because law allows killing mice/rodents that are hazardous to property, health. Court disagrees. Difference here is motive. Moral sensibility decision. Torture before death. Nature of videos the most important thing. His motive outweighed other things—so even if he was trapping “nuisance” mice and doing this, it still would have been unacceptable.

9. What Is Allowed?
   1. Justified
      1. Self-defense
      2. Spaying/Neutering
      3. Training tactics
      4. Whose standard applied?
   2. Routine/Standard/Acceptable
      1. Research
      2. Agricultural
      3. Training
   3. Hunting
      1. In Season (though question of method remains)
      2. Out of season (not allowed)
      3. Justified killing, but what if it becomes torture?

10. Hoarders/Collectors: A common problem. Engender a lot of public sympathy, maybe have received money from sympathizers.
    1. People v. Speegle (CA 1997) (p. 431) D hoarded 200 poodles, one cat, and three horses. D contends statute unconstitutionally vague. Court held statute not vague. D also claims Double Jeopardy: forfeiture of property and criminal charges. The court dismisses that argument noting that taken to its logical extreme, children could never taken out of their abusive home. Civil forfeiture provision separate from criminal charge.

11. Cost of Impoundment:
    1. People v. Speegle (CA 1997) (p. 431) D argues that should only have to pay for costs to animals who ended up dying. Court disagrees. D argues because animals deemed “abandoned” she shouldn’t have to pay for care after this point. Court disagrees. Liable for costs of impounding only if convicted. D rules she has to pay for all animals, not just ones convicted of hurting. This poses constitutional problem even though good as punitive and for shelter. Costs of impoundment under MPC. As a public policy matter, makes sense to not have to make shelter foot the bill, discourages hoarder, gets prosecutors off hook by not having to bring case on each animal. But as constitutional issue, problematic.

12. Necessity Defense
    1. Emergency
    2. Threaten Physical harm
       1. Death of animal does not satisfy requirement in Youngblood
       2. In most cases, not explained if has to be against person
    3. No legal remedy (can you go to court and get same outcome?)
    4. Does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of crime
    5. Balancing of harm to be avoided as opposed to costs of criminal conduct
    6. Youngblood (CA 2001) (p. 437) Hoarder of cats convicted of animal cruelty. On appeal, says jury should have been instructed on necessity defense. Court disagrees. D not at liberty to impose own will over public will. Necessity Defense in this case is against public policy. Court says not an emergency because of public policy: state allows shelters to euthanize animals, pre-euthanasia precautions. Doesn’t address legal remedy. Court says physical harm must be that of person, not animal.

13. Protecting Reporters of Abuse: Labarbera (NY 2000) (p. 441) Animal cruelty reported. No charges filed. Before anything happened, alleged abuser moved to get name of reporting person. Court said no. Would be different case if criminal case because of confrontation clause that requires production of witness in case of charge. Court says public interest in protecting animals by encouraging reporting outweighed interest in seeking redress by civil action.

14. Economic Interest Affecting Enforcement of Cruelty Statute? Thompson (IA 1948) (p. 441) Court concluded the evidence was insufficient to sustain a conviction of cruelty to animals by unnecessarily failing to provide proper food, drink, shelter. No dogs had died, just dehydrated. Dogs were strays, so court says used to deplorable conditions, didn’t suffer any more than would have if left alone. Conditions not as deplorable as in Schott. Perhaps idea that dogs not considered as valuable as livestock in Schott.

15. Extreme Cruelty Toward Livestock: Schott (NE 1986) (p. 442) D convicted of AC for neglect, starving cattle and hogs. Court says significant evidence to support conviction. Many (or all) of cattle, hogs died. Strong expert testimony. If D had better defense that had some handicap, might have gotten off more easily.

16. Cockfighting: States split.

17. Bullfighting: C.E. America v. Antinori (FL 1968) (p. 446) Bloodless bullfighting held to violate state AC and animal exhibition laws. Policy: Why should this be illegal and not rodeos? Barrel racing? If bullfights were American and rodeos Mexican/Spanish, the rodeos would be considered bad and bullfighting would be considered acceptable.

18. Cats Not Covered By AC Law: Commonwealth v. Massini (PA 1963) (p. 52): Not domestic animals. Legislative intent.

19. Hunting: Boushehry (IN 1995) (p. 469) Another leaner/threshold case. Strange case. D charged with 11 criminal offenses arising out of the killing of two Canadian geese out of season. On appeal, D argues that there was insufficient evidence to support conviction for criminal recklessness and cruelty to animal, and that was subjected to double jeopardy.

1. Two ways to commit cruelty: (1) torture, beat or mutilate, or (2) kills animal without authority of the owner of the animal. Only charges with first kind maybe because didn’t actually do shooting. Court says not guilty of first kind of cruelty. First goose shot in head and killed instantly. No cruelty even though out of season. Second goose: shot and throat slit. Court sustains verdict only to goose not killed right away.
2. As to Criminal Recklessness, Court says insufficient evidence because crime requires risk to person. Court seems to want to get this guy any way they could for shooting goose out of season.
3. D read statute as requiring removal of birds outside state. Court disagrees. State not required to prove that D took or possessed the geese outside the state to gain conviction. Claim of insufficient evidence on this ground fails.
4. Policy: Discourages the wrong act of trying to put animal out of misery.

2. Dog Theft: Numerous states have enacted specific statutes against dog theft, and a growing number of states are classifying the crime as a felony rather than a misdemeanor. (p. 51)

3. Harboring Dangerous Animal:
   1. Comella (PA 1999) (p. 53)

6. ANIMAL WELFARE ACT (CHAPTER 6) Began to protect lab animals. Broadened to protect most animals used for commercial purposes (research, zoos, circuses, exhibits, trainers). Farm animals, birds, rats and mice excluded. Law supposed to provide lots of protection: oversight by FDA, annual reviews of locations utilizing animals. In practice not happening. Not enough resources. If law was being enforced, even then FDA has not right to tell researchers what research is worthy, only to enforce minimal standards of animal care. So many violation of AWA on regular basis, provides good opps for animal rights lawyers. Criminal as well as civil cases brought under AWA.

1. Haviland v. Butz (1976) (p. 517): Dog and Pony Show. D got license to file lawsuit, argues AWA should not regulate him. D also argues that inclusion of animal acts in the Secretary’s implementing regulations is an unconstitutional usurpation of legislative power; exceeds congressional power under Commerce Clause and discriminates invidiously in contravention of DPC. Family, property law are traditional areas governed by states. Court holds that Secretary allowed to determine who is governed by AWA because that’s what the act calls for. Court determined that D subject to federal legislative regulation because interstate commerce. Not necessary to tackle whole problem. Ps sue government for failure of enforcement of AWA, failure to adopt enforcement under AWA. Standing issues brought in this case, therefore must go to Article 3 analysis. Criminal cases do not bring up standing issues.

2. Toney v. Glickman (1996) (p. 522) Requirements that exist under AWA. Issue of record keeping, source of animals. Issue of state of health of animals. Question of WILLFULLY falsifying records in determining sanctions (rose of willful, otherwise a form of SL). Issue also of time requirements for keeping animals. For everyone of these violations, had to show evidence of bad recordkeeping. Tony’s only got convicted for dogs proven had done something wrong with. Without evidence, no conviction. AWA criminal cases, detailed investigation is crucial, as detailed list of violations—only where violations pile up will courts consider cases. Toney did not get out of business after this—no injunction to keep out of business.

7. ENDANGERED SPECIES ACT (Chapter 6) The “pit bull” of animal litigation—strongest law codifies by any legislature. Cam out of deep concern for preservation of wildlife (and plants), sincere desire to maintain out important assets. Complex law with many levels. Designed to protect wildlife and their habitats for sake of biodiversity. Two most important classification: Both initially provide same amount of protection. Mandate is to do “everything necessary” to bring species back from brink of extinction, to get them off list. Commercial, economic interests are not to be considered. Decision should be based on good, current science.

1. Endangered: In danger of extinction

2. Threatened: Likely to become endangered in foreseeable future
   1. Can have “special rules” different from endangered class
      1. Must be “for conservation purpose”
      2. Most common special rule is for Captive Animals, which are exempt from protections
         1. chimpanzees (split-listing)
            • wild (endangered)
            • captive (threatened): to protect research and entertainment industries

3. Getting Animal on List
   1. By government (proper Secretary/Service)
   2. Any “interested person” through petition process.

4. TVA v. Hill (1978) (p. 560): Court does not care how “insignificant” the animal or how extensive the economic burden—violation is a violation. Shows force and power of ESA—stands for interpretation of Act. Dam had been in process of being built before ESA enacted. Strong dissent: Congress wants dam. Majority said rule is absolute—Congress can change rule if they want.

5. Babbit (1995) (p. 568) Habitat impact not allowed under ESA if it will actually kill or harm animals.

6. Spotted Owl: Animal used by environmentalists to prohibit logging.

8. MISC.:
   1. Service Dogs: Animal rights activists usually against because of inbreeding, etc. Crowder (p. 3)
   2. Speciesism:
      1. New Zealand Plan: Rights for greater apes only. P. 21.

   3. Animal Welfare and Economic Interests

      1. Holcomb (MI 1913) (p. 45): Turkey domestic animal. Turkey owner has economic interest and courts like to protect this.
   4. Property-Plus or Person-Minus? On both sides, there’s agreement that they’re different.
      1. Torts: Vast majority of courts still decide tort cases involving harm to companion animals from a purely economic standpoint. A growing number, however, are considering whether animals should be treated differently from inanimate property.