In Memorium

Sadly, Hannah R. Arterian, Dean of Syracuse University's College of Law, passed away 8 April 2022. SSRN appreciates her contribution to and support of the Legal Scholarship Network (LSN), and she will be missed.

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"Exploring the Writ of Replevin as a Pre-Judgment Remedy for Protecting Exotic Animals" Free Download
Duke Environmental Law & Policy Forum, Vol. 32, No. 167, 2021

MARY-BAILEY FRANK, Duke Law School, Animal Legal Defense Fund

By (erroneously) continuing to hold animals as property under the law, the legal system has incentivized the investigation of common law property doctrines as a means to protect endangered animals in court. A prejudgment writ of replevin could be a useful tool if the parties are able to establish a possessory interest. This is most likely to occur in a case that is (1) brought under an ESA cause of action; (2) involves clear takings under the ESA and is thus likely to prevail on the merits; and (3) is in a State with a replevin statute that is amendable to the common-law notion of possessory interest. There are also several areas of further research related to replevin as a tool for animal protection. First, if animal advocates can convince the USDA to argue for possessory interests under the ESA, there could be positive implications for animals under administrative law. Second, the procedure for requesting rehoming at specific sanctuaries after litigation has concluded could be adjusted in ways that would benefit animals. For example, earlier determinations of rehoming facilities may help deter further abuse to animals after a final judgment has been issued. Overall, it is worth prioritizing research on tools to make success in litigation under the ESA more effective. A win on behalf of endangered animals should be a win for the animals, and all available tools, even if they seem outside the scope of immediate relevance, should be considered.

"‘Moral’ Determinations in WTO Law: Lessons from the Seals Dispute" 
Journal of International Economic Law 2022

BEN CZAPNIK, The Chinese University of Hong Kong

This article develops a conceptual framework for understanding the ambiguous concept of public morals in World Trade Organization (WTO) law. It reviews the jurisprudence and literature to suggest there are four main options for operationalizing this concept in a legal test. If WTO adjudicators opt for an empirical approach, they can test whether a certain belief is genuinely held within the regulator’s society (unilateralism) or whether it is shared more broadly by the global community (externalism). If WTO adjudicators prefer a ‘moral’ approach, they can interrogate the content of the regulator’s measure (normative inquiry) or whether it addresses a moral issue (meta-ethical inquiry). Each of these approaches suffers from important weaknesses. WTO adjudicators have taken an equivocal approach: they make amorphous statements alluding to all four approaches but do not settle on a clear public morals legal test. In Seals, they went further by establishing an equivocal characterization of the European Union’s (EU) policy objective, which failed to clarify what the EU’s seal products ban sought to achieve or even whether it was based on objective rational considerations. This use of fallacious reasoning by dispute bodies has important implications for WTO law with respect to indeterminacy, transparency, and judicial activism.

"Remembering the Ocean in Water Law" Free Download


In the United States and many other countries, a legal divide occurs at the coast. Management authorities, for example, often change somewhere in the vicinity of the high tide line. However, in most cases, freshwater flows into saltwater. This connection has always been vital to trade and navigation and allows numerous inland cities—such as London, U.K., and Portland, Oregon, USA—to function as active seaports. That connection is also why water law should be more cognizant of the ocean: how nations regulate freshwater affects the health of the ocean.

The abuse of the freshwater-saltwater nexus is pervasive worldwide. Moreover, the regulatory fragmentation that prevents governments from comprehensively including coasts and the ocean within watershed management or freshwater law is also well-documented. Both water pollution and freshwater allocations can and do harm the ocean and coastal ecosystems.

Instead of revisiting the problem of regulatory fragmentation, however, this chapter focuses instead on instances when water law remembers the ocean. Using illustrative examples from United States law, it explores the many ways in which the laws governing the pollution and allocation of freshwater can be—and have been—cognizant of the eventual terminus of almost all freshwater flows. The goal is to provide a starting toolbox for researchers and regulators who want to better protect the ocean and coastal resources from upstream insults.

"Responding to Regulatory Barriers to 'Ethical Meat': Are On-Farm Slaughter Exemptions the Solution?" Free Download
Canadian Journal of Law and Society / Revue Canadienne Droit et Société 2022

SARAH BERGER RICHARDSON, University of Ottawa - Civil Law Section

English Abstract:? Mandatory meat inspection requirements have long been a source of frustration for advocates of ethical meat. Seen as overly restrictive and ill-adapted to the realities on the ground, some argue that farm-to-consumer sales should be subject to less stringent inspection requirements than conventional meat supply chains. Recently, a series of legislative reforms authorizing on-farm slaughter suggests that policy makers are listening. But do on-farm slaughter exemptions really facilitate ethical meat sales? To answer this question, this paper explores meat inspection systems in Quebec, Ontario, and Vermont. Drawing on data obtained from semi-structured interviews with producers, processors, and policy advisors, it argues that inspection requirements may not be the barriers they are presumed to be. Instead, producers and processors face other more significant financial and structural challenges. These need to be addressed if ethical meat is to be a viable alternative to the dominant model of animal agriculture.

French Abstract:? Les exigences en matière d’inspection de la viande sont depuis longtemps une source de frustration pour les défenseurs de la viande éthique. Ces exigences sont considérées comme trop restrictives et mal adaptées aux réalités du terrain. Certaines personnes soutiennent ainsi que les ventes directes de l’éleveur au consommateur devraient être soumises à des exigences d’inspection moins strictes que celles des chaînes conventionnelles d’approvisionnement en viandes. Récemment, une série de réformes législatives autorisant l’abattage à la ferme suggère que les décideurs politiques sont à l’écoute. Mais les exemptions d’abattage à la ferme facilitent-elles vraiment les ventes de viandes éthiques? Pour répondre à cette question, le présent article examine les systèmes d’inspection des viandes au Québec, en Ontario et au Vermont. S’appuyant sur des données obtenues à partir d’entretiens semi-structurés avec des producteurs et des transformateurs de viandes ainsi que des conseillers en matière de politiques, cet article soutient que les exigences d’inspection ne semblent pas constituer les obstacles que l’on pourrait croire a priori. Au contraire, les producteurs et les transformateurs sont plutôt confrontés à d’autres défis, financiers et structurels, plus importants. Des défis qui doivent d’ailleurs être relevés si l’on veut que la viande éthique soit une solution de rechange viable au modèle dominant de l’agriculture animale.

"Property in Wolves" Free Download
Forthcoming, Cornell Law Review, Vol. 108, 2023

JACK WHITELEY, Georgetown University Law Center

From colonial times until the mid-twentieth century, governments paid bounties to kill wolves, mountain lions, and other wild animals. Clearing the wild was a sustained legislative project. Yet interest in these statutes has remained confined to scholarship on wildlife conservation, and important insights for legal theory have gone unobserved.

Based on new research, I argue that these bounty statutes have implications for the history and theory of property. The statutes were, in their intent and effect, land use regulations. For more than three centuries, they encouraged livestock. By removing wild animals, the statutes made livestock-raising a more cost-effective use of land than it otherwise would have been for landowners. And by removing wolves and other ecologically important species, they changed the character of land in ways that diminished the value of wilder uses. The statutes chose winners among land uses, and they operated over a much longer timeframe than conventional accounts, which date land use regulation’s origin to 1916, would suggest.

The statutes also had a deeper consequence. They encouraged private property in land. Predation on livestock is the kind of “large event” that, on a famous theory developed by Robert Ellickson, makes collectively-owned land valuable. By acting to remove the threat of wild animal predation on livestock in settlement communities, governments weighted the scale toward privately-owned, fee-simple land regimes. This discovery raises questions for a popular normative justification for private property in land.