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Abstract:
In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict if some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict. This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the nature of corporate criminal intent and effectively treats a domestic corporate entity as if it were a rogue nation facing trial for war crimes. Part I offers a brief history of Andersen's rise and fall. Part II examines Andersen's association with Enron and the events that led to Andersen's indictment and trial. Part III analyzes the court's ruling on the jury's question and situates it within the nature of entity guilt. Part IV contextualizes the dispute over collective responsibility within a larger cultural context, including the "War on Crime." The Conclusion and Postscript offer some thoughts on the dangers - both present and future - of our national obsession with war.

Andersen, due process, entity guilt, law of war, collective responsibility, corporate criminal law, enron, collective guilt,corporate guilt

Abstract:
Factory farming is often discussed in terms of its environmental and social impacts. It receives far less attention for what those practices say about our evolving relationship with animals. This article speaks to the latter.

Though rife with practices that might otherwise invite governmental scrutiny, industrial agriculture operates in a regulatory environment that endorses and subsidizes its methods. Discussions of factory farming that focus on the treatment of animals can often segue into apologies for or against animal rights. This article takes a different tack, asking instead how and why the factory farm industry could grow ascendant in an era when the concept of a human-animal divide has become increasingly suspect.

These opposing trends present a complex social dilemma. Bred Meat argues (through, among other methods, a case study of the Supreme Court's decision in Church of Lukumi Babalu Aye v. City of Hialeah) that the principle of humans as separate and distinct from animals is derived from and dependent on a fundamentally religious belief. A legal framework predicated on such a notion can exist only in tension with the Establishment Clause.

Addressing the problems of factory farms - as well as other forms of animal exploitation - will involve unraveling a tightly woven cultural quilt. It will require eschewing the unworkable notion of a human-animal divide and constructing a legal rhetoric of the posthuman. The last part of Bred Meat represents an attempt to begin that process.

factory farm, industrial agriculture, personhood, animals, animal rights, animal cruelty, establishment clause, religion, posthuman, moral community, kant, freud, francione, property

Abstract:
Animal sacrifice and religious ritual have intertwined for thousands of years. The practice remains integral to Santería, an Afro-Cuban religion that has many adherents in the United States, particularly in Florida. In 1987, when the Santería Church of Lukumi Babalu Aye announced plans to open in Hialeah, Florida, the city reacted by passing a set of ordinances banning animal sacrifice. The Church sued and the issue of whether the ritual killing of animals constituted protected religious expression eventually made its way to the Supreme Court. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah asked the Court to resolve two linked constitutional questions: Does the ritual slaughter of animals constitute religious expression protected by the First Amendment of the United States Constitution? And, if so, (or even if not) may the practice be banned or regulated by the State?

These are difficult questions and the Court's attempt to answer them raises more questions still. This chapter examines the Court's reasoning in the Lukumi case to determine whether it clarified or further clouded the relationship between animal sacrifice and the First Amendment. It argues that the plurality opinion's attempt to cast the Hialeah ordinances as underperforming animal protection statutes was both misguided and counterproductive.

Defining the Hialeah ordinances as anti-cruelty rather than as anti-sacrifice enabled the Court to find the laws both overbroad and underinclusive. For those reasons, the Court deemed the ordinances to be intolerably burdensome to religious practices. This reasoning falls prey to the same imprecision the Court imputes to the challenged laws. It demands that the laws be both narrowly drawn to accomplish a specific goal while yet remaining broadly applicable to behavior that lies beyond their stated scope. Such conflicting expectations create an impossible standard. In addition, by classifying the animal sacrifice laws as failed anti-cruelty statutes and then invalidating them on First Amendment grounds, the Court jeopardized future attempts to legislate animal protection laws, even when such laws only incidentally impact religious practices.

First Amendment, Free Exercise Clause, Establishment Clause, Animal Law, Animal Sacrifice, Lukumi Babalu, Santeria, constitutional law, freedom of religion

Abstract:
This chapter of the Lexis Treatise, Waters & Water Rights provides an overview of the statutes and cases governing water law in New York State. The state's water law is primarily codified in Article 15 of New York Environmental Conservation Law, with residual issues defined by common law. New York is considered a reasonable use riparian jurisdiction, although its comprehensive legal framework could also fit under the rubric of "regulated riparianism." This chapter surveys water law in the state - from interstate compact down to municipal flood control ordinance and attempts to contextualize them within the overall state legal framework.

water, water law,water rights, water use, environment, environmental law

Abstract:
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective standard by which a plaintiff, society or a court can measure harm or injury. Using examples drawn both from history (the Trail Smelter Arbitration (1930-41)) and fiction (Barbara Kingsolver's novel Animal Dreams), this Article illustrates that the inherent contingency of language renders it impossible to define harm or injury without acknowledging the systemic perspective from which the concepts are viewed.

The path to an intelligible standing doctrine lies not in focusing on this artificial opposition, but instead in acknowledging statutory violations as injurious to the social and legal system of which we all form a part. Assuming the violated statute contains a citizen suit provision, the resulting harm to the system could and should enable individuals to sue. This policy would conform the Court's standing jurisprudence to the language and intent of the statutes before it. Moreover, this policy would counter the undermining of the rhetoric of environmental protection that persists so long as the Supreme Court continues its frequent yet unsuccessful efforts to retool its definition of cognizable legal injury.

Standing, Environmental Law, Laidlaw, Kingsolver, Animal Dreams, Systems Theory, Citizen Suits, Private Right of Action

Abstract:
For animal advocates, one of the most significant barriers to the courtroom is standing. In order to litigate on behalf of an animal’s interests in federal court, the advocate must first establish standing by meeting three requirements: (1) the plaintiff must have suffered an injury in fact, (2) the injury must be causally connected to the act about which the plaintiff is complaining, and (3) the court must be able to redress the injury. When it comes to non-human animals, how does an advocate demonstrate an injury to establish standing? In this panel, experts in animal litigation discuss the concept of establishing legal standing for animals and animal advocates; the panelists’ own experiences, including specific cases and creative methods used; and the future of legal standing for animals.

Animal Law, animals, standing, litigation

Abstract:
Discussions of animal treatment within the global food industry often devolve into debates about animal rights. Such detours needlessly distract from an ongoing social and environmental catastrophe. This essay attempts to reframe the global food debate in a manner that more directly acknowledges our obligations to and the needs of the billions of animals enslaved within the industrial food apparatus.

Industrial agriculture has refashioned animal husbandry into a mechanized process that ignores historic methods of human/nonhuman animal interaction (methods that evolved over millennia) as well as ethical mores. These industrial methods – cloaked in the mantle of efficiency – have become deeply entrenched despite clear evidence of their unsustainability and unworkability. This intractability results from a systemic flaw inherent in the role of efficiency in society. Not only is efficiency an amoral concept devoid of any normative component, but those who lionize it also routinely exclude externalities from their calculus. This makes any cost-based risk equation potentially unsound and misleading.

Consequently, using efficiency as an ethical barometer is flawed both hermeneutically and practically. It should never have acquired a normative aspect and it should never have been defined to exclude externalities. The upshot of this double mistake is that the prevailing mode of human/animal interaction is unsustainable (inefficient) and ethically bankrupt. Reframing that interaction will require refashioning the legal system that enables it.

Part II of this essay examines the role of communication in the formation of law and social norms and the implications of that role for animal law and ethics. Part III contextualizes animal law within contemporary risk society. Part IV looks at how efficiency has transformed from an economic concept into a normative guideline and discusses how that transformation has affected animals and agriculture. It tracks the rise of industrial agriculture and ties it to this fundamental misunderstanding of the concept of efficiency. The essay concludes with some thoughts on how to reformulate contemporary notions of efficiency and ethics to account for the idealism that should be a necessary component of communication and, consequently, of law.

animal law, animal rights, industrial agriculture, factory farming

Abstract:
The United States began as a nation rich in biodiversity. Today, like much of the rest of the world, it faces a biodiversity crisis that is very real and worsening. Species and ecosystems face extinction amidst a political climate hostile to regulatory intervention and a patchwork system of laws that disperses responsibility among various federal agencies while allocating land use authority over non-federal land to the individual states.

This paper looks at the cultural and legal framework from which biodiversity laws in the United States evolved. It next surveys the legislative and regulatory matrix from which protections must now emerge. It then discusses why the current system of laws cannot and will not provide lasting ecosystemic protections and offers some suggestions as to how we might weave biodiversity protections into the national federalist framework.

biodiversity, landscape, environment, environmental law, habitat, ecosystem