USD Professor claims trophy hunting against public policy, advocates for challenging laws permitting it in court, and prohibiting it under law.

When I was down at USD many years ago working on a degree in Public Administration, I had an odd incident where at a tavern I was introduced to a law school classmate of a friend. This classmate was from the East Coast, and hadn’t met many people yet. In striking up a conversation, I asked him if he had chosen USD because of the outdoor opportunities, as deer season was almost starting.

His somewhat rude reply, in a thick Boston accent? “I think hunting is barbaaaric,” as he went on a bit. Thankfully, that momentary interlude was my only interaction with this person, and I understand why his circle of friends was quite small.

Although, fast forwarding a couple of decades, from the sounds of things, it appears “barbaric deer guy” would be in synch with the current faculty.

A note was sent out from USD today to a number of people, including alumni, about an article one of the newer Law Professors has written. Was this woman writing about a facet of law that South Dakotans might find interesting and informative?   Well…..  you could call it interesting and informative, if you think generating pickets and protests of the law school as interesting and informative.

Because she’s advocating for a worldwide ban on trophy hunting:

Message from Prof. Dellinger: 

Dear all,

I simply thought I would let you know that my article on “trophy hunting” – the hunting for “sport” of rare species – has now been published.  You can download it from here, should you like to see it: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2822111 .  Feel free to share that link others.

 I advocate against continuing the practice of trophy hunting.  I address the issue from, mainly, a contracts point of view, arguing that the practice can modernly be held unenforceable under the common law for reasons of public policy (public opinion has, in recent years, turned against killing very rare animals).  I also argue that under the precautionary principle of law, to which the United States subscribes, the practice must be discontinued at least until there is more affirmative proof that the practice, as alleged, brings in valuable income to some regions.  The latter is highly questionable according to scientific studies.  I also briefly discuss the public trust doctrine and the state ownership of wildlife doctrine.

The article – with our name featured – is currently on SSRN’s list of top ten articles (by download) of the following journals: Animal Law eJournal, Regulation of Contracting Private Parties, WTO Law, Natural Resources Law & Policy eJournal, North/South Relations, Politics of the WTO, and Political Economy – Development: Underdevelopment & Poverty.

Warm regards,

Myanna Dellinger
Associate Professor of Law
University of South Dakota School of Law

Oh my. In South Dakota that’s going to go over like a Baby Ruth bar in a swimming pool.

When parents are footing the bill for a very expensive education at USD, I don’t think that’s the product they were expecting to purchase. However, that’s the extreme liberalism that prospective law students will be facing in class.   And wait – it gets better when you look at the article:

Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy

The “shadowy subculture” that trophy hunting has been said to be is one that attempts to make the unacceptable sound acceptable under the guise of euphemisms and questionable facts as will be demonstrated in this Article. While such discussions continue, more and more of the very last few specimens of several rare species are killed for, in effect, fun. As a society, we cannot allow trophy hunting of wild, rare animals to proceed given the uncertainty surrounding the effects of the practice and the reprehensibility of it to society. Contracts that are considered “unsavory,” “undesirable,” “at war with the interests of society,” or “in conflict with the morals of the time” may be declared unenforceable for reasons of public policy regardless of whether or not any underlying legislation provides that the contractual conduct is illegal.

and…

The public trust doctrine and the closely related doctrine of state ownership of wildlife impose a highly relevant duty on the government as the sovereign tasked with ensuring that wildlife is protected for the enjoyment of the present and future generations of all citizens, not just the select few. The doctrines could, as analyzed above, be used as mechanisms to ensure standing for plaintiffs seeking to challenge the validity of government regulations including the issuance of trophy hunting permits. Courts serve a valuable gatekeeper function in this respect. The above actions would not constitute undue judicial activism. Rather, they are examples of taking necessary action before it is too late where both the marketplace and the legislature have failed to meet the goals of society at large. The judiciary takes such necessary action in many other contexts, especially when there is a gap in the legal protections otherwise afforded to certain interests. This is the case with the last few remaining animals of many rare species. All action possible should be taken to protect these for future generations. That includes halting the unnecessary and injurious practice of trophy hunting.

In one of her many great works, late Professor and Vice-Chair of the UNECE Aarhus Convention Compliance Committee Svitlana Kravchenko wrote about the existence and enforcement of environmental human rights that “[t]he enforcement of ‘rights’ in the legal system does not, by itself, change government policy, but the embedding of rights in our thought systems can.” She 2016] Trophy Hunting Contracts continued to note that even more important than whether legal rights play a role in our minds is the issue of whether they play a role in our hearts. Said Kravchenko: “The reason that I focus on hearts is that changes there are more permanent; and where the heart goes, the head tends to follow.” In the case of trophy hunting of rare, wild animals, both people’s hearts and minds have changed. For that reason and for the legal reasons set forth in this Article, trophy hunting contracts should be declared unenforceable for reasons of public policy. The practice should be prohibited under positive law as well. (My emphasis  -PP)

Download the full article here.

So, we have a law school professor at USD who wants to ban trophy hunting, by invalidating contracts for it, as well as making it “prohibited under positive law as well.”  And apparently, it all exists in a “shadowy subculture?”  (Don’t tell South Dakota Taxidermists. They may have to move off of State main streets on to a side street.)

Seriously. A USD Law prof wants to ban hunting as against public policy, and calls it’s participants part of a “shadowy subculture?”

Has she ever actually talked to the people at the University she’s teaching at?  I don’t think she’s going to make any headway with her suggestion that trophy hunting be prohibited “under positive law as well.”  In fact, I think she may have earned herself a bit of scorn for being utterly out of touch with the part of the world she’s teaching in.

What are your thoughts?

9 thoughts on “USD Professor claims trophy hunting against public policy, advocates for challenging laws permitting it in court, and prohibiting it under law.

  1. B K

    I was disappointed to read this email and the referenced paper. It’s my perception that the law school needs the guidance and assistance of the community it serves, perhaps now more than ever. Divisive publications such as this are unlikely to help.​ I found the article’s premises to be questionable and the legal analysis to have little basis in either fact or law. I think the law school community should expect both something different and something more from a contracts professor.

    Reply
  2. Troy Jones

    So much for the concept of democracy. We should just let the elitists of jurisprudence make the law, enforce the law, and execute punishment. We are their lowly servants.

    Reply
  3. Anonymous

    It is a law school, what do people expect? USD has the normal percentage of anti-American, anti-hunting, anti-religion professors. Until the citizens of the state stand up and try to change how the hiring is done (“You’re against everything the founders believed in-you’re hired!”) universities will continue to be places where, generally speaking, the founding principles and the Constitution are given short shrift.

    Reply
  4. Porter Lansing

    Expecting USA to adhere strictly to the opinions of the “founding fathers” is like saying, “This is the way great-grandpa wanted the family run and that’s the way we have to run it a hundred years later, no exceptions.” Times change, needs change and customs change. The constitution is a living document and must reflect current trends and tendencies. People’s expectations change … as do hunting practices. Those who fear change and want things to “just stay the same for a while” are a dwindling minority whose voice is growing dimmer daily, thankfully. South Dakota’s aversion to change is wonderful, if you want to turn the state into an old folks home and drive out the youth.

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  5. Wil Burns

    I’ve read the piece, and found the legal analysis sound and creative. I would think that the state of South Dakota would want its future lawyers to be trained by professors who can help them developing critical reasoning skills, and to develop arguments based on both the law and its policy implications. The invocation of “god” by a number of posters was particularly discordant. Please cite the biblical verse where god advocates hunting of animals for pure sport and profit. I can quote you several verses that emphasize our obligations of stewardship, which assuredly should preclude hunting of endangered species for no other purpose than to display their pelts.

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  6. Charlie Hoffman

    1st Amendment gives anyone the right to perjure their intelligence publicly about anything they wish to be made fun of. I wonder how many trophies colleges have up on their mantels from trophy hunting human high school athletes? How many NBA Titles have been won by trophy hunting college athletes? How many wives picked by beauty in the eye of the beholder considered a trophy? Could even be the reason Diamonds are in that wedding ring made of gold and silver instead of coal in copper.
    Eh yeah some bright guy once thought we all should return the Great Midwest to the Buffalo Commons too. And he didn’t even know they are really Bison. This too will pass…….

    Reply

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