Mary-Bailey Frank (Duke Law School; Animal Legal Defense Fund) has posted Exploring the Writ of Replevin as a Pre-Judgment Remedy for Protecting Exotic Animals (Duke Environmental Law & Policy Forum, Vol. 32, No. 167, 2021) on SSRN. Here is the abstract:
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.
