Geordie Duckler - Animal Law Practice Animal Law Practice
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What if my friend declares that she now owns my dog?

•  As to most properties — personal or real — socially and legally approved documents indicate just who owner is. Primarily, owners of properties possess a title (as with a car), a deed (as with a house), or a receipt (as with a purchased good) which founds ownership rights in the exchange of the object for consideration by way of a formal document. In distinction, no formal document goes along with ownership of a dog as far as the common law is concerned. The putative owner may have in hand a purchase invoice from Petco, a vet record from an animal hospital, an AKC registration paper, a blue ribbon from a dog show, a photograph of him delivering the puppy from the mother at its whelping, or any number of papers that seem to indicate exclusive possession — but none are dispositive of ownership legally, they are all merely indicia of ownership. Under the common law it is current actions and activity, not papers that determine true dog ownership. This test starts from the premise that there are three fundamental distinctions between animals and other properties:

  1. Animals have the ability to manifest intent
  2. Animals have the ability to move themselves independently over distances
  3. Animals have the ability to independently compound their value over time

Because animals make independent decisions, independently move about, and independently duplicate themselves, an owner who has been dispossessed of an animal's ownership inadvertently isn't subject to the rules as to personal properties that have been lost, abandoned, or mislaid — the law of implied bailments is employed instead. The current actions and activity test that determines true dog ownership relies upon these three qualities of intent, motility, and compounded value, to reflect the idea that whomever is the owner at one moment in time may change, and a new owner may arise to take their place depending on time and circumstance. The legal machinery that reflects that transformation from owner one to owner two looks not only to the actions and activity by the owner themselves — it also looks to the actions and activity by the animal. It tends to reduce the importance of human status or position and it increases the importance of human and animal conduct.

What if I want to take my pet to work with me?

•  Certainly if you have an actual disability, federal law — primarily, the American with Disabilities Act (ADA) — requires that an otherwise qualified employee with disabilities must be given meaningful access to the same programs and services which other employees enjoy. In those circumstances where employees describe provision of an animal to be a "reasonable accommodation" for certain impairments, courts engage in a balancing test, weighing the benefit of any assistance an animal might provide a disabled employee against the hardship of any disruption the arrangement might impose on others in the same workplace, including on customers and co-workers.

Being a fact question, a claim that having a dog ameliorates stress or allows one to perform job duties better must be supported by evidence that the dog has particular medically therapeutic qualities. In other words, just like back in grade school, you will need a note from the doctor — and not just a vague endorsement of the dog's effectiveness as an overall source of good feelings, but a solid diagnosis that the dog actually solves specific problems that the worker needs solved in order to do their work.

While courts may pay lip service to the value of canine companionship, they are often quite reluctant to ultimately give legal significance to the observation that "dogs make people feel better" since it permits no identifiable stopping point: the worry is that eventually every person with a condition that brought about feelings of depression or low self esteem would be entitled to the dog of their choice, without regard to job-related training or utility, and, worse, that there would be no logical reason to eventually deny accommodation for those who liked cats, fish, reptiles or birds better than dogs. For that reason, while one may find many more dogs in offices these days in contrast to even five years ago, it is doubtful that "cubicle cats" will then become a standard workplace phenomenon any time soon. Deeply underlying courts' anxiety over the lack of a bright dividing line is the odd (and quite modern) popular perception that animals overall tend to subtract from human productivity much more than they contribute.

What if wanted to prove to a judge just what a great dog my dog is?

•  Almost everyone agrees that dogs have "personalities," and it is a favorite pastime to speculate on how such personalities manifest. Is a dog's intent reflected in the particular way a tail is wagged, the angle at which an eyebrow is lifted, or the deliberate pitch and volume with which a bark is uttered? While much has been written about the nature of communication between people and their dogs, little has been on the intrinsic significance of dogs' expressions themselves.

Dogs — lacking the capacity for formal speech — cannot obviously explain in words what they truly mean. Certainly owners are good at informally assessing meaning indirectly. Being best acquainted with their pet's qualities, owners are most attuned to a dog's past; most familiar with behavioral patterns and strange anomalies; and most aware of what it takes to obtain or distract the dog's interest, tamp down less desirable instincts, and raise up the more endearing traits.

The subject of whether a dog's intent can formally be ascertained has historically been the domain of the philosophizing animal behaviorist or the armchair veterinarian. Lawyers, in contrast, are better acquainted with the practical difficulties of expressing in words the internal experience of others who cannot speak for themselves — about their hearts, their minds, whatever it is one cannot see but feels — in a systematic way that relates one's experience to everyone else's. As examples with infants, the mute, and the illiterate demonstrate, the lack of a mutually spoken language certainly does not create an insurmountable obstacle to discerning intent between two people — why should it really be that different between a person and a dog? The difficulties that lawyers primarily bump up against in the situation with dogs is not the ability to perceive and understand, but instead the archaic rules of evidence that restrict testimony on how that understanding gets conveyed to a jury.

One reason is that the law has always considered dogs to be personal properties, and — no different than hats, hammers, or hamburgers — subject therefore to rules affecting trade goods. Dogs have been owned, bought, and sold as products; used as equipment or tools; "manufactured" (i.e., artificially bred); and even harvested as sources of food. Since normal products and trade goods do not have "personalities", the law on what any particular good might "feel" is nonexistent. In evidence law, there is simply no historical basis to treat dogs any differently than dishwashers.

Still, intent appears through the phenomena of physical expression in some manner, and dogs undeniably express themselves through thousands of physically-related behaviors, both broad and nuanced. Dogs, very unlike trade goods, act out by showing strong preferences and dislikes, slight interests and disinterests, uncontrollable assertions and unalterable hesitancies, piercing attentions and vague distractions, persistent dispositions and temporary desires. Dishwashers do nothing of the sort.

Because humans remain uncomfortable in a formal legal setting suggesting they share generalized mental experiences with any group other than themselves, unease makes judges and legislators resist applying the same rules to owners that allow normal witnesses to speak of other's internal experiences. Testimony is allowed only about dog's behaviors, and determinations of the "meaning" of a dog's acts often do not extend past a general presumption that dogs are usually harmless. Intent is assumed to flow merely from a dog's past conduct, and dog intent is determined solely from "propensities" for engaging in certain actions.

Only quite recently have lawyers pushed to formally recognize dog personalities as separate from their behavioral propensities, and the law on whether and how such a thing may be presented to a judge or jury is currently a big muddle. Both people and dogs have personalities, of course, composed of myriad and sundry traits, learned and genetic. The personality of a dog is really a small piece to a much larger puzzle of what "personality" is as to any living thing, and may reflect a host of dynamic and competing forces from both nature and nurture that all living things exhibit. Biology and ownership jointly contribute to how dogs interact with the world, and examining their intent in a courtroom is simply one more method by which society examines itself - appreciating not just fundamental distinctions between people and other animals, but fundamental similarities as well.

What if I have to decide just what my animal is worth?

•  Many animals are market goods, and the free market helps determine their worth. For some animals however, especially dogs, the existence of a uniformly agreed upon market is not at all so certain and, although dogs are certainly bought and sold both privately and publicly, their nature as living things that act as companions and mature and change behavior over time makes their initial purchase price inconsequential very rapidly. The dog you bought at one date is a very different dog at a later date depending on what you have been doing with the dog during that period, and dogs tend to appreciate, not depreciate in value in light of the owner's involvement.

Stranger still, and absolutely opposite as to the way we treat other properties, is the idea that, as a dog's value increases, its owner becomes less willing to either accept value for the animal or impart monetary value to the animal at all. The St. Bernard that has been with the family for 12 years changes, in a sense, to become "priceless", compared to the very priceable St. Bernard that was just a day ago taken out of the pet store window. Oregon, as with a minority of states, has some civil rules addressing what to do about the "special" as opposed to "market" value of a dog.

What if I am not a vegan or an animal rights person? Can animal law rules still help me?

•  Those who might think that animal law involves commitment to some sort of command that "every living creature" must be protected are critically mistaken. An agenda of somehow "protecting all animals" is an agenda based on an unhealthy fantasy, both in the scientific sense — since it ignores the complex interactions that all animals (including humans) have with their biotic and abiotic environments, and in the social sense — since it ignores the complex interactions that humans have had with the other animals for hundreds of thousands of years. The serious and intelligent practice of animal law is an area infused with the most practical hard-headed realities any lawyer ever faces: the clients and other parties often deliberately eat, kill, ride, hunt, sell, love, and harm animals in their daily lives and the lawyer confronts each act and each activity on its own merits without resort to fantasy or wish fulfillment. Concepts of ownership, control, responsibility, utility and valuation all get swirled together in respecting and exploring — not politicizing or dismantling — our laws on tort, property and contract that apply to animals as owned objects.

Human relationships with animals form a thick nest of contradictions. We worship animals and we eat them; we create beautiful works of art about them, and we unblinkingly exploit them for the practical usefulness of their various component parts. Most of the contradictions distill down to either encouraging or retraining some sort of use of animals, and most uses in turn are a reflection of the limited power we wish to have over all sorts of things in our immediate environment that we would like to control — including animals and their complicated behaviors and activities.

The tension between our personal beliefs about the animal world and our scientific knowledge about the animal world specifically tend to create what is almost an irresolvable contradiction for us about our relationships with and control of animals. In cultural contexts, some start with the general proposition that all animals were somehow "created" for people, yet at the same time strictly impose ethical commands on themselves and others to respect some of them (but certainly not all). What culture — in the form of religious and social institutions — does not do well, however, is make any concerted effort to mark out sensible, working definitions and criteria for just how to do so.

For many scientists, on the other hand, constructing definitions and assessments of what animals are and how they operate is an approach that cuts to the very heart of the matter of the impacts between animals and ourselves; scientists measure and classify, record and categorize, and divide, mark, and define — often then recognizing that sometimes there are quite bright lines and sometimes rather murky areas in the multi-faceted interactions between humans and all other animals.

Overall, we note that we seem to be animals ourselves in certain fundamental respects, yet cannot help but be astonished at the ferocity with which all the other animals engage in the most inhuman and uncompassionate behaviors imaginable: predation, parasitism, infection, exploitation of the infirm, the young and the old, the manipulation of every weakness by every strength possible — actions that seem to be the antithesis of how human culture has developed. Examples of cooperation, of altruism, of mutual symbiosis are the oddball exceptions of animal behavior in the wild, topics to be curiously remarked upon but definitely not the norm.

So, how can we be so like animals, but at the very same time be so not like them? How can we be related to them biologically and anatomically in the most intimate ways, and yet be so different from them socially and intellectually? Are they ours (as objects to use) or are we them (as colleagues under the fur)? Which animals deserve respect, which animals require destruction, which animals do we need to protect, which animals do we need to be protected from, and which do we just not care a whit about at all? Laws are all about balancing competing interests, and in terms of the general value of animals in their relationships with humans, our laws reflect a significant tension between use and respect. The concept of value is a standard legal concept, and when it comes to animals, it isn't just that we have been socially conditioned to treat animals as morally valuable objects, but evolution by natural selection has biologically fashioned us to treat animals as environmentally valuable objects as well. Ownership, responsibility, control, utility, and value all seem to be integral functions of every type of relationship that we have with animals and a professional and competent animal law attorney analyzes and responds to every one of those concepts in relation to the facts of each specific case.

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