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The latest issue of Lewis & Clark Law School’s Animal Law is now out.

Here are the articles published in Volume 12, Number 2 of Animal Law, complete with links to the abstracts and full-text articles:

Articles

• Think Or Be Damned: The Problematic Case Of Higher Cognition In Animals And Legislation For Animal Welfare by Lesley J. Rogers and Gisela Kaplan
• Just Say Neigh: A Call For Federal Regulation Of Byproduct Disposal By The Equine Industry by Mary W. Craig
• Dog-Focused Law’s Impact On Disability Rights: Ontario’s Pit Bull Legislation As A Case In Point by Barbara Hanson

Comments

• Every Dog Can Have Its Day: Extending Liability Beyond The Seller By Defining Pets As “Products” Under Products Liability Theory by Jason Parent

New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.

Lesley J. Rogers and Gisela Kaplan, Think Or Be Damned: The Problematic Case Of Higher Cognition In Animals And Legislation For Animal Welfare, 12 Animal Law 151 (2006)

Recent discoveries of higher cognitive abilities in some species of birds and mammals are bringing about radical changes in our attitudes to animals and will lead to changes in legislation for the protection of animals. We fully support these developments, but at the same time we recognize that the scientific study of higher cognition in animals has touched on only a small number of vertebrate species. Accordingly, we warn that calls to extend rights, or to at least better welfare protection, for the handful of species that have revealed their intelligence to us may be counterproductive. While this would improve the treatment of the selected few, be they birds or mammals, a vast majority of species, even closely related ones, will be left out. This may not be a particular problem if being left out is only a temporary state that can be changed as new information becomes available. But, in practice, those protected and not protected are separated by a barrier that can be more difficult to remove than it was to erect in the first place. We summarize the recent research on higher cognition from the position of active researchers in animal behavior and neuroscience.

(abstract from Animal Law)

Mary W. Craig, Just Say Neigh: A Call For Federal Regulation Of Byproduct Disposal By The Equine Industry, 12 Animal Law 193 (2006)

This article discusses the thousands of foals born each year that are bred for industrial purposes. These foals must then be disposed of as unwanted byproducts of the equine industry. PMU mares are bred to collect urine rich with hormones used in the production of a drug to treat menopausal symptoms. Nurse mares are bred to produce milk to feed foals other than their own. If adoptive homes cannot be found quickly, both industries dispose of their equine byproducts by slaughtering the foals, and sometimes the mares, for profit or convenience. This paper calls for an amendment to the Animal Welfare Act enabling the Department of Agriculture to regulate the PMU and nurse mare farms, and requiring both industries to responsibly dispose of these horses.

(abstract from Animal Law)

Barbara Hanson, Dog-Focused Law’s Impact On Disability Rights: Ontario’s Pit Bull Legislation As A Case In Point, 12 Animal Law 217 (2006)

Legislation that affects dogs also affects persons with disabilities to some extent. This link shows up in statutory definitions, is justified by social construction theory, and has been reified in case law. Thus, it is important to examine statutes like Ontario’s pit bull legislation (OPBL) in terms of their potential impact on persons with disabilities. Upon close examination, it appears that the legislation suffers from vague definitions, conflicting onus of proof, absence of fair process, and severe penalties, including imprisonment. Further, it contains no reference to dogs used by persons with disabilities. This means that there is potential for persons with disabilities to suffer negative consequences and a need to consider disability rights in dog-focused legislation.

(abstract from Animal Law)

Jason Parent, Every Dog Can Have Its Day: Extending Liability Beyond The Seller By Defining Pets As “Products” Under Products Liability Theory, 12 Animal Law 241 (2006)

Is a pet a “product”? A pet is a product for purposes of products liability law in some states, and as this article will show, the remaining states should follow suit. Every year, thousands of “domesticated” animals are sold to consumers who are uninformed as to the animal’s propensities or to the proper method of animal care. In some instances, these animals are unreasonably dangerous in that they spread disease to humans or attack, and possibly kill, unwitting victims. Improper breeding and training techniques and negligence in sales have led to horrific injury. This comment will demonstrate how merely considering pets as products opens up new theories of liability for the plaintiff’s lawyer, offering a deeper base of defendants who are both morally and legally at fault. From the standpoint of a consumer advocate and with concern for both human and animal welfare, the author proposes employing products liability theory to the sale of domesticated animals. By making sellers of “defective” animals accountable for personal injury that these animals cause, the quality of the animals bred and sold will likely improve. Where it does not improve and injury results, the victim may have recourse beyond the confines of contract remedies. Products liability theory is a lawful and needed method for preventing future harm and providing for a healthier human and animal kingdom.

(abstract from Animal Law)

The latest issue of Lewis & Clark Law School’s Lewis & Clark Law Review is now out.

Here are the articles published in Volume 10, Number 2 of Lewis & Clark Law Review, complete with links to the abstracts and full-text articles:

Articles

• Compulsory Education and Substantive Due Process: Asserting Student Rights to a Safe and Healthy School Facility by Rebecca Aviel
• The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, is Either of Them Safe? by Mitchell J. Frank and Dr. Dawn Broschard
• The Secretary Will Deny All Knowledge of Your Actions: The Use of Private Military Contractors and the Implications For State and Political Accountability by Saad Gul
• Tattoos and Copyright Infringement: Celebrities, Marketers, and Businesses Beware of the Ink? by Christopher A. Harkins
• Underage Drinking: Does Current Policy Make Sense? by Judith G. McMullen
• Free Advertising: The Case for Public Relations as Commercial Speech by Tamara R. Piety
• Casually Finding The Clear and Unmistakable: A Re-Evaluation of First Options in Light of Recent Lower Court Decisions by Joseph L. Franco
• Walking the Line: The Rehnquist Court’s Reverence For Federalism and Official Discretion in Deshaney and Castle Rock by Megan Grill

Book Reviews

• Book review of The Antitrust Enterprise: Principle and Execution by Herbert Hovenkamp by Reza Dibadj

New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.

Rebecca Aviel, Compulsory Education And Substantive Due Process: Asserting Student Rights To A Safe And Healthy School Facility, 10 Lewis & Clark Law Review 201 (2006)

This Article asserts that students have a substantive due process right to a public school facility that meets minimum health and safety requirements. Students who cannot afford private school are effectively required by law to spend six to eight hours a day in whatever facilities their state education system provides. Constitutionally protected rights to personal security and bodily integrity are implicated when these facilities directly threaten students’ immediate health and safety—for example, locked or non-functional bathrooms, unsafe drinking water, or classroom walls covered with asthma-inducing mold. Compulsory education under these conditions violates the substantive limits on state action set by the Due Process Clause.

(abstract from Lewis & Clark Law Review)

Mitchell J. Frank and Dr. Dawn Broschard, The Silent Criminal Defendant and the Presumption of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe?, 10 Lewis & Clark Law Review 237 (2006)

This Article uses surveys of actual jurors to analyze jurors’ responses to instructions, focusing specifically on whether and how often real jurors, into whose hands our judicial system ultimately entrusts the presumption of innocence and the Fifth Amendment privilege, applied and upheld them. Additionally, it frames these fundamental protections by their histories, purposes, and applications to shed further light on how effectively these jurors upheld this trust. It concludes that the presumption that jurors follow their instruction is fundamentally flawed, and proposes means for insuring that jurors better understand and apply instructions, particularly in the criminal law realm.

(abstract from Lewis & Clark Law Review)

Saad Gul, The Secretary Will Deny All Knowledge of Your Actions: The Use of Private Military Contractors and the Implications For State and Political Accountability, 10 Lewis & Clark Law Review 287 (2006)

This Article argues that the main issue regarding the use of private military contractors (PMCs) is that of accountability. It begins by exploring the status of mercenaries in international law, as reflected in various conventions, protocols, and state practice. It maintains that contrary to popular belief, the use of PMCs or mercenaries—no matter how defined—is not a violation of international law. However, their use has serious political implications at both the domestic and state levels because it obfuscates the issue of ultimate responsibility.

(abstract from Lewis & Clark Law Review)

Christopher A. Harkins, Tattoos and Copyright Infringement: Celebrities, Marketers, and Businesses Beware of the Ink, 10 Lewis & Clark Law Review 313 (2006)

Tattoos are almost ubiquitous these days, with body piercing likely following closely behind. With advertising increasingly displaying skin—from hip huggers to cropped shirts to a basketball jersey showing an athlete’s tattooed arm—actors, actresses, and sports figures display both forms of body art on television, the silver screen, billboards, and the Internet for consumer product and service providers who hope to benefit from increased sales. But businesses, advertising agencies, and celebrities often lose sight of any interest that tattoo artists may have in the tattoos and body piercings. In this Article, Mr. Harkins uses the recent copyright infringement lawsuit stemming from the advertising use of basketball player Rasheed Wallace’s tattoo to analyze the current state of copyright law’s application to body art.

(abstract from Lewis & Clark Law Review)