Quite apart from the fact that attacking Cass Sunstein as some kind of radical is completely ridiculous, what, precisely, was wrong with what Sunstein was arguing for in his rat lawyers piece?
If I understand correctly, Sunstein was arguing that there’s an asymmetry between laws that protect animals and laws that protect people. If I am negligent in my use of a chain saw, and cut off your arm, you can sue me for damages. If I use my chain saw to cut off the legs of local stray dogs, I’ve broken the law and can be arrested, tried and, if convicted, sent to prison – but nobody has standing to sue me, because the only damage that’s been done is to the dogs, and dogs don’t have standing. (If they weren’t strays, the owners would have standing.) Sunstein was arguing that this asymmetry makes enforcement of laws against animal cruelty relatively weak; normally, the civil law acts (among other things) to buttress the criminal law because in the civil law you’ve “privatized” the investigation and prosecution of the harm. Giving ordinary citizens the standing to sue on behalf of animals would, similarly, privatize the investigation and prosecution of harm to animals; instead of being hapless wards of the state, animals legitimate interests could be protected by any vigilant citizen.
What’s wrong with that? Nothing – if you think laws against animal cruelty should be zealously enforced. Sunstein wasn’t arguing that animals should have any interests or “rights” that aren’t already established legislatively; his whole argument is about how to get protection of such interests or “rights” enforced. It seems to me that if one wants to argue against this, one has to argue either:
(a) there is nothing wrong with cruelty to animals;
(b) cruelty to animals is indeed wrong, but is vital to our national economy and so should not be curtailed even though it is wrong;
© current laws against animal cruelty are overbroad and should be scaled back (and the only reason we haven’t done so is that they are so poorly enforced that nobody notices);
(d) current laws may not in themselves be overbroad, but will inevitably be interpreted in a broad manner by the courts, such that activities that would not now be prosecuted (e.g., hunting, medical research) and never intended to be prohibited legislatively would wind up being prohibited;
(e) protecting animals in this manner might indeed work, but the courts are too inefficient to handle the claims and we’d wind up clogging them with junk suits so that overall less justice was done rather than more.
I find it very hard to believe that anybody wants to seriously argue for (a), (b) or ©. Option (d) strikes me as a plausible objection, but is subject to legislative correction if the courts wind up overreaching – and, more to the point, hardly justifies apocalyptic rhetoric. Option (e) is an empirical claim that could be applied to any situation where someone has recourse to the courts, and I find it hard to believe that such a situation would be anything but temporary until a new equilibrium is established.
In the end, what’s unsettling is that anybody who’s done any reading on the subject knows that modern agribusiness results in really unconscionable enormities. You don’t have to believe animals have rights to believe that there should be some mechanism for scaling back the amount of suffering we inflict upon animals. There are plenty of folks on the right who would agree. So the question then is what’s the right mechanism for achieving that goal. “Consumer choice” is never going to be terribly effective because relying on that means relying on large numbers of people to act against their immediate interests. One reason we have laws is that most people don’t do this as a matter of course. Meanwhile, giving humans the standing to sue strikes me as much more likely to move actual practice swiftly in the direction of a new equilibrium that is more favorable to animals’ interests than would the allocation of substantial government resources to enforcement, precisely because the function of investigation and prosecution would be effectively privatized. The question then becomes one of relative priorities. Which is more important: improving animal welfare or ensuring that the price of meat (and toiletries and cosmetics and other products tested on animals) is minimized? Are you really a wild-eyed radical if, given that choice, you prioritize improving animal welfare?