Primal rights

Standing behind a lectern in a first-floor classroom at Hauser Hall in the somber center of Harvard Law School Saturday afternoon, Robin Bernstein ducked and parried as three black-robed judges fired question after question at her about the definition of the word cruelty.

At stake was whether a company connected to animal testing could tout their product as ''Cruelty Free." The problem that Bernstein -- a second-year Rutgers University law student -- faced is that neither the courts nor the law she was arguing has settled on an accepted legal definition for cruelty.

''Isn't it an evolving term?" asked one judge.

''The animals are tortured," responded Bernstein.

''But isn't cruelty in the eye of the beholder?" asked a second.

''I think if you were to hold open a rabbit's eyes and pour chemicals in them until the rabbit is blind, then a reasonable consumer would consider that cruel," Bernstein responded.

Bernstein's point was dramatic but the judges weren't convinced. The scales of justice are cold and sober. Emotion wouldn't win the day.

The exercise was part of the Animal Rights Moot Court competition held at Harvard last weekend, and it reflects how the center of gravity within the animal rights movement is shifting from the colorful court of public opinion to the far more dispassionate court of law. Along the way a growing number of activists-turned-law-students like Bernstein are signing on to advance their cause.

''This is something I've always wanted to do," said Bernstein, who was one of about 50 students from around the country who came to sharpen their skills with some of the foremost experts in the field. ''It combines all my interests."

In the last couple of years, animal rights law has begun to blossom into a viable career path for a new generation of attorneys. Pet custody, wrongful death cases, veterinary malpractice suits, pet cruelty cases, and even pet trusts -- in which people set aside money in their wills to care for their companion animals -- are slowly reaching a critical mass in lower courts.

Animal rights activists say they are laying the legal foundation establishing that pets have intrinsic worth. Ultimately, says Steven Wise -- a judge at the moot court and the author of ''Rattling the Cage," a seminal work on the subject -- this foundation will support a ruling that animals are not property but have rights of their own and thus legal standing.

''It will require us to convince a panel of judges to change hundreds of years of law," said Wise. ''But it's going to happen; I imagine it's between five and 10 years away."

Wise's confidence stems from the growing body of science showing that ''nonhuman animals" are smarter and more aware than previously believed. ''Animals have complex emotions, can communicate using language, and have a sense of self," Wise said.

And just as important as the science is the growing army of legally trained advocates arguing the cause. Five years ago, Harvard became one of the first law schools in the nation to offer animal rights courses; today there are about 40 schools. And support systems to further professionalize the niche -- like the moot court competition last weekend -- are springing up at many of these schools, says Laura Ireland, the 28-year-old director of the National Center for Animal Law and the organizer of the moot court.

''It's a really exciting time to enter this field," said Ireland. ''There is more and more opportunity, and it's growing very quickly."

The most recent law school to throw its weight behind the animal rights movement is the Massachusetts School of Law at Andover, where Diane Sullivan -- herself the owner of two dogs -- began teaching a course on animal rights this semester. She is walking her 13 students through the still sparse case law on the subject, starting from the definition of an animal and working through liability and legal standing.

''If you know how animals are treated, how can you not speak out?" Sullivan says from her office attached to the school's library last week. ''You've got to try to improve things."

Thanks in large part to pioneers like Wise and professors like Sullivan, the legal status of animals is slowly improving. Five years ago, Tennessee became the first state in the nation to approve emotional distress damages for the loss of a pet. In Massachusetts, animal cruelty cases are increasingly being prosecuted, and in the last few years, dozens of counties and municipalities have passed laws giving companion animals higher status than property by assigning guardianship status to their owners. It's a subtle legal distinction, but just the sort of groundwork that could one day lead to far broader animal rights, Sullivan said.

''I think this will follow the course of movements like civil rights or gay rights or women's rights," said Sonia Waisman, another of the judges at the moot court competition and one of the authors of the textbook used to teach most law courses on animal rights. ''The more people find out about it, the more they want to make a difference."

Bob Barker, longtime host of the television game show ''The Price is Right" and an animal rights activist for 25 years, said the movement feels like a snowball rolling down the side of a mountain. Five years ago Barker endowed Harvard with an animal rights chair. He now counts UCLA, Duke, Stanford, and Columbia among his recipients. Northwestern and the University of Michigan are forthcoming.

The strategy behind each of the $1 million donations, he said, is to indoctrinate young lawyers who will eventually become the judges and legislators and interpret and write the laws.

''Right now, I think one of the most effective ways in which we can hope to make this world better for animals is to enact more stringent legislation to protect them and to really effectively enforce the laws that we already have on the books," Barker said.

While animal rights activists applaud the momentum that is forming behind the movement, not everyone is so positive about it. Insurance companies that indemnify veterinarians, for example, are fretting that as pets become more protected, lawsuits will drive expenses up for such things as health care.

If a veterinarian harms a pet that cost $500 but the vet can be sued for $100,000 for emotional distress caused by the harm, the vets will end up paying higher malpractice insurance rates, said Carol McConnell, the manager of veterinary education and services for Veterinarian Pet Insurance in California, which sells about 85 percent of the pet insurance policies across the country.

''I believe most vets would say this is not a good thing for animals because it's going to drive up the cost for everybody," she said.

Sullivan said those repercussions pale in comparison to what's at stake. And, she argued, ''If someone harms my dog I should be compensated not only for the market value but for the emotional value."

Asked how much she thinks that would be, she looked at one of the pictures of her dogs that dot her office and said, ''Not less than $100,000" a figure she is doubtful she will see in her lifetime.

''But I am hopeful that one of the 13 students in my class could achieve such a verdict one day," she said.