About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


2017 U. Ill. L. Rev. 817 (2017)
Of Chimps and Men: Animal Welfare vs. Animal Rights and How Losing the Legal Battle May Win the Political War for Endangered Species

handle is hein.journals/unilllr2017 and id is 831 raw text is: OF CHIMPS AND MEN: ANIMAL WELFARE VS. ANIMAL RIGHTS AND HOW LOSING THE LEGAL BATTLE MAY WIN THE POLITICAL WAR FOR ENDANGERED SPECIES BRYAN VAYR* American law has historically viewed nonhuman animals as property whose interests are balanced against those of humans-a so- called welfarist view of animals. In contrast, animal-rights propo- nents argue that animals are legal persons entitled to a slate of rights regardless of the inconvenience for humans. Animal advocates of both stripes-dissatisfied with welfarist statutes such as the Endan- gered Species and Animal Welfare Acts-have taken their causes to the courthouse. After discussing the relevant history and theory, this Note pragmatically weighs the merits of both the welfarist and rights- based approaches to cause lawyering for endangered-species protec- tion from both extinction and cruelty. The Note concludes that activ- ists' finite energies may be better spent petitioning the legislator in- stead of the judge. Cause lawyers nonetheless may help win the political debate by engaging in litigation capitulation -making the polity aware of current legal shortcomings by bringing juicy, sympa- thetic animal cases to court that are likely to suffer a high-profile, un- popular defeat. TABLE OF CONTENTS 1. INTRODUCTION .......................................... 819 II. BACKGROUND ..................................... ...... 821 A. Theoretical Foundation: Animal Welfare vs. Animal Rights...................................... 821 1. Animal Welfare ........................ ..... 822 2. Animal Rights ..................... ......... 824 B. The Bad Old Days: A Brief Legal History of Nonwild and Wild Animals in Anglo Law............. .............. 825 C. A New Hope: Addressing Fears of Cruelty and Extinction... 827 1. Anti-Cruelty and the Animal Welfare Act ..... ...... 828 2. Conservation and the Endangered Species Act ................ 829 * J.D. Candidate, 2017, University of Illinois College of Law. I want to thank the editors and members of the University of Illinois Law Review for their hard work and good nature throughout the year. Most of all, I want to thank Emily Cross for patiently and graciously enduring many a dinner conversation on this topic: I look forward to a lifetime of breaking bread and mulling over the counter- majoritarian difficulty with you. 817