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Scholarly Legal Analysis

Scholarly Legal Analysis

Scholarly Legal Analysis Uniformly Critical of
Breed Discriminatory Legislation

Scholarly legal analysis is uniformly critical of Breed Discriminatory Legislation on both legal grounds and as a matter of policy and cost. Scholars agree that legally, BDL violates due process, equal protection, is void for vagueness and does not have a rational basis.  As a matter of policy, BDL punishes law abiding citizens allowing those who don't care to continue to acquire pit bulls.  The cost of enforcement is high, and yet bite statistics remain the same. For those of you who want to read what legal scholars have to say, I have compiled the following list (most recent first):

Breed Discriminatory Legislation: How DNA Will Remedy the Unfairness4 Journal of Animal Law & Ethics 161 (May 2011)

This aritcle discusses the subjective and arbitrary enforcement of breed discriminatory ordinances and  specifically the lack of training regarding visual breed identification for officers empowered to enforce such ordinances. It offers suggestions for legitimatizing breed identification by advocating for canine DNA testing. The author argues that DNA testing provides an objective and fair way for law enforcement and dog owners to work through breed identification disputes. The article explores DNA as an evidentiary tool and its admissibility in court, since up until 2011 no court had ever admitted canine DNA for evidence of breed. The article concludes that canine DNA, in both civil and criminal cases, should pass the Frye and Daubert tests and should therefore be admissible when determining breed in enforcement of breed discriminatory legislation.

Irrationality Unleashed: The Pitfalls of  Breed Specific Legislation, 78 University of Missouri L. Rev. 839 (Spring 2010)

The author discusses the hazards and shortcomings of breed discriminatory legislation by analyzing the misconception that the pit bull is a breed. The article explores the contruct of breed discriminatory legislation, and why it tends to survive court challenges. The author argues that breed bans are not rationally related to a legitimate public interest by reducing all dogbites. In concluding, the article explores the lack of rational basis as it relates to issues of race and class, thus constitutionally requiring a higher level of scrutiny. 

Animal Law-When Dogs Bite: A Fair, Effective, and Comprehensive Solution to the Contemporary Problem of Dog Attacks, 32 University of Arkansas at Little Rock L. Rev. 259 (Winter 2010)

This article proposes a three point plan to remedy the problem of vicious dog attacks. In the first part of the article, the author argues that the scope of criminal liability should continue to expand in the case of preventable and especially violent attacks. In the second part of the article, the argument is made that a dog owner's civil liability should be based on a simple negligence standard under which neither the dog's breed nor its prior behavioral history are entirely dispositive, but rather factors to be considered in determining the scope of the owner's duty. The third portion of the article is devoted to state and local registration laws, that should be practical, easily enforced and aimed solely at promoting responsible dog ownership, regardless of breed.

Animal Ethics and Breed-Specific Legislation, 5 Journal of Animal Law 1 (2009)

As a different approach to the issue of breed discriminatory legislation, this article is written from a philosophical perspective and is more conceptual than legal. The author argues that the creation of breed discriminatory legislation aimed at specfic breeds of dogs is incompatible with social ethics. By showing there is a moral-conceptual flaw regarding breed discriminatory legislation, the author surmises that a factual basis need not be supplied, although he does cite facts thoughout the article. Despite the historical separation of law and morality, the author asserts that the law is, in fact, closely connected to morality in numerous ways, positing historical examples such as desegregation.

Pit Bull Bans and the Human Factors Affecting Canine Behavior, 56 Depaul L. Rev. 1285 (Summer 2007)

This article begins with a 1983 story about a child that was mauled to death by a pit bull; the story was twisted by the media to portray a much different set of facts than the actual reality. Over time the pit bull has become known as one of the most dangerous breeds and been the center of numerous pieces of legislation. The aritcle goes on to discuss the Denver legislation that once prohibited breed discriminatory legislation and how it was overturned by supporters claiming that all pit bulls were unpredictable and aggressive animals. Opponents point out  that the human element is the heart of the problem, namely the inhumane treatment impacting a dog's behavior and in turn fueling a negative media image that bolsters support of breed bans. The author concludes that breed bans only shift the issue of dog fighting and vicious attacks by dogs to another breed and fails to consider how human behavior affects canine genetics. Pit bull bans fail to target the human element and thus allow the problem of irresponsible owners to perpetuate the problem.

Attacking the Dog-Bite Epidemic: Why Breed Specific Legislation Won't Solve The Dangerous Dog Dilemma, 74 Fordham L. Rev. 2847 (April 2006)

This article points out the flaw of dangerous dog laws, arguing that all dogs of a target breed are subject to regulation, regardless of prior conduct or dangerous propensity.The first part of the paper delves into the growing number of dog bites and dog bite related deaths. The author then moves on to examine the common concerns and criticisms of breed discriminatory legislation, while providing an overview of various pieces of legislation. The article concludes that breed discriminatory legislation is an ineffective means to combat the problem of dog bites and proposes breed neutral dangerous dog laws as a solution.

The Case Against Dog Breed Discrimination by Homeowners' Insurance Companies, Vol. II, No. 1 Connecticut Insurance Law Journal  (2004-2005).

The author opens this article with an anecdote about having difficulty finding homeowners insurance after purchasing a home due to her dog's breed. The first part of the article gives an overview of the problems surrounding breed discrimination in the insurance industry as well as problems related to breed discriminatory legislation. The author analyses the science behind dog bites which shows that there is no proof that any particular breed is more inherently dangerous than another. Next the article discusses that breed discriminatory legislation is not supported by most professional organizations or animal welfare groups.The author points out that most insurance companies tend to ignore the role pets play in the American family, and that pets are slowly evolving into more than mere property in the eyes of the law. In conclusion, the article discusses the public harm done by insurance companies and their underwriters with respect to their breed discriminatory policies.

Canine Profiling: Does Breed Specific Legislation Take A Bite Out Of Canine Crime?, 108 Penn. St. L. Rev. 855 (Winter 2004)

The author explores the constitutionality of breed discriminatory legislation and proposes a myriad of alternatives that will better address the dangerous dog problem in America. The article explores the history of the relationship between man and dog and the evolution of the problem with dog regulation. Anaysis of the various contitutional issues of breed discriminatory legislation is next. The article then examines recent legislation that attempted to ban or restrict certain breeds. Finally, the author proposes several alternatives to banning breeds, specifically by enforcing current law and holding owners strictly liable for dangerous dogs.

 

  • Breed Specific Legislation: Unfair Prejudice & Ineffective Policy, 10 Animal Law 313 (2004)
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    This article explores the policy behind breed discriminatory legislation instead of dwelling on the constitutional issues. The author does spend some time discussing basic constitutional implications regarding breed discriminatory legislation, but focuses more on whether it is a fair and practical approach for protecting society from dangerous dogs. The appendix provides a great overview of several breed discriminatory laws and ordinances and makes a great resource for those who wish to do further reseach on the subject.

  • Breed Specific Legislation Revisted: Canine Racism or the Answer to Florida's Dog Control Problems, 27 Nova Law Review 415 (Spring 2003)
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  • If Spot Bites the Neighbor, Should Dick and Jane Go to Jail, 39 Syracuse Law Review 1445 (1988)
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    The author looks at the current status of both legislative and judicial decisions regarding dangerous and vicious animals. The first portion of the article evaluates current legislation that is designed to regulate vicious dogs and discusses the constitutionality of breed discriminatory legislation as well proffering suggestions for future legislation. The author then provides an historical perspective by tracing the progression of owner liability for vicious animal attacks under tort law. Finally, the article focuses on imposing criminal liability on owners of animals that attack and kill humans.

  • The New Breed of Municipal Dog Control Laws: Are They Constituional?, 53 University of Cincinnati Law Review 1067 (1984)
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    Legislators nationwide have been charged with solving the problem of serious dog attacks. This has resulted in the passage of many ordinance and laws targeting pit bull type dogs. Traditionally, legislation regulating dogs has been seen as a legitimate exercise of a state's police power. Today, however, the various ordinances aimed at pit bulls raise contitutional questions concerning the owner's fourteenth ammendment rights of due process and equal protection. Due to various pieces of legislation that classify pit bulls as inherently dangerous, this may put in question the legitimacy of the state's use of its police power. This article reviews the responses in the form of legislation and analyses their constitutionality. The author concludes that alternatives to breed discriminatory legislation will allow lawmakers to protect their constituents while upholding the constitution.