But Why Was Sunstein Wrong?
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?
It’s amazing how, when Mr. Millman wants something the law doesn’t allow, it becomes an indeterminate mass, such that nothing is illegal (“the law says this, the law says that”), but when he thinks that judges will share his values, the rule of law becomes some sacrosanct principle.
— y81 · Sep 15, 05:17 PM · #
That is not a very persuasive critique of Noah’s argument.
— Conor Friedersdorf · Sep 15, 06:21 PM · #
I don’t think this fits into your a-e. There are already too many lawsuits. It should be harder to get standing to sue than it is currently, even for human beings. Giving animals the right to sue would make everything more expensive and would not significantly reduce animals’ suffering. If I were hugely wrong about that last point, to the extent that Sunstein’s idea would put an end to say factory farming, I would probably change my mind. But I think more plausible consequences would be higher operating costs at pounds and less people adopting from them.
— cole porter · Sep 15, 06:55 PM · #
Let me put it this way. You can believe that the law is whatever judges and other government officials say it is. That is Mr. Millman’s position on odd-numbered days. In that case, obviously, no farmer or hunter would want his or her activities to be subject to greater legal scrutiny, because you never what the whims of the powerful will be on any given day.
Or you can believe that law is a determinate set of rules reflecting social consensus about justice. In that case, no one should fear greater legal scrutiny, because if you conform your conduct to the known rules of justice, you will be vindicated. That is Mr. Millman’s position on even-numbered days.
But to hold both positions is sheer disingenuousness.
— y81 · Sep 15, 10:45 PM · #
“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.”
I cannot imagine how slippery of a slope this is. Let’s put aside for the moment the overwhelming lack of evidence showing how civil court lawsuits “move actual practice swiftly in the direction of a new equilibrium.”
To my mind, the reason we agressively prosecute animal abuse cases nowadays is because of the wide body of evidence that suggests animal abuse is indicative of abusive nature in general. Put another way: the law is more concerned about the criminal nature of the owner then it is about animal rights.
Having said that, it is logical to understand the frustration experienced by people who are concerned primarily about animal rights. In your example of agribusiness, this industry is seen as providing a core human good, thus it is difficult to project criminality onto its proprietors. Rightfully so, I might add. This core human good has an economic outcome whether you like it or not, and in the case of cheaper food that is seen by many people as a positive economic outcome.
In civil law suits, particularly the personal injury example you cite, the settlements are mostly driven by economic justifications (with a heavy dose of “I hope the jury gives me a winning lottery ticket”.) If you lose your arm to a chain saw, that arm has a particular $$ figure attached to it, not including the lost wages, pain and suffering, etc… you will argue for in court. How does this translate to animal rights? What if by enforcing more stringent animal rights laws (either by gov’t action or by privatized prosecution) we make the core good agribusiness provides for us much more expensive? Modeled economically, this could be seen as a loss to society. It will be hard to argue against this in front of a jury…unless the person you are suing stepped on a newborn kitten, and you claim emotional suffering. In that case you’ll probably win 10 million dollars, particularly in New York.
— Matt C · Sep 16, 11:43 AM · #
cole porter, Matt C: you both make good points, in particular, Matt C’s point about settlements; if PETA sued Tyson Foods because of cruelty to chickens, how does the aggrieved collect on a judgment? In fact, the kinds of cases that are probably most analogous are cases under civil rights law, which does not, I’ll admit, inspire confidence in the proposed approach.
I don’t think I agree with you, Matt C, that we prosecute animal abuse cases primarily because we’re worried animal abuse will lead to violence against people. Rather, I think our conscience is genuinely shocked by cruelty to animals. People were not worried that Michael Vick was going to start torturing people; they were just appalled by dog fighting. Obviously, lots of people also like dog fighting, or there wouldn’t be a market for the practice. Obviously as well, plenty of people – myself included – are perfectly willing to turn a blind eye to pervasive cruelty if it is in our interest to do so and nobody makes us do otherwise. That doesn’t change my point, I don’t think.
As for animal “rights” – as regular readers are aware, I’m not much for debates about natural rights. But positive rights – rights created by law – are another matter. I don’t think it’s unreasonable to assert that animals have interests and that a law prohibiting cruelty to animals as such is a law that recognizes those interests. Interests and rights aren’t exactly the same thing, of course, but I don’t think the difference matters to our debate here, not deeply anyway.
It is clear to me that a lot of the silly rhetoric we’ve seen about Sunstein’s purported radicalism is based on a supposition that he’s suggesting animals do have natural rights, and the fear that such a proposition undermines our whole system of law and morality. Hence the quick leap to Singer-ism. But he isn’t proposing that, and neither am I.
With regard to the likelihood of reaching a new equilibrium: this isn’t my area of expertise, and you may well be right that no such equilibrium would be reached, in which case that would be a strong practical argument against the idea. But in general, my impression is that business reacts relatively quickly to changes in the law, whether we’re talking about statutory or case law, to revise their practices to avoid liability. That’s certainly what I’ve seen happen in my limited view of the legal changes that have impacted my industry during my time on Wall Street. And the courts themselves have a strong interest in reaching some kind of equilibrium; over-stuffed dockets are not something judges particularly want. Where that equilibrium lies is another matter, though again this is something the legislature can always jump in and alter.
I do want to be clear: I never intended to suggest that Sunstein’s speculative proposal was a no-brainer, or that there were no plausible counter-arguments. I merely wanted to note that it wasn’t crazy on its face – in fact, on first glance it made some sense to me – and so it struck me as bizarre that everyone on both sides agreed that the proposal was radical and off-the-wall, and simply disagree about whether making radical and off-the-wall suggestions in an academic context should disqualify someone for public service. I thought it behooved somebody to take the proposal itself a bit more seriously than it was being taken.
— Noah Millman · Sep 16, 02:55 PM · #
Seems to me that everybody is basicly arguing in favor of alternative (b); if we take seriously the pain & suffering of our food animals, it would seriously disrupt the way we live our lives, collectively and individually. Probably that’s true. Probably most people would avoid the bald self-interest in that formulation and prefer to argue that lesser forms of life don’t have real feelings, and therefore the question of rights is moot. “Lesser forms of life” has been at times of course a very flexible formulation.
I don’t have an opinion on whether Sunstein’s suggestion is a good one, but it sure would open the door to a lot of troublemakers, like English libel law or Roman private criminal prosecution. Maybe a legal remedy wouldn’t be the best idea. It is Sunstein’s turf.
— Marshall · Sep 17, 12:09 AM · #
Actually, I’m pretty much on board with (a). Laws against animal cruelty as such strike me as the height of… I’m not sure what the word is. Something that combines “stupidity” and “decadence”?
— PEG · Sep 17, 02:22 PM · #
I am in the odd position of being to the right of Noah.
Third-party standing suffers from a very basic problem: there is no guarantee that the interests of the surrogate will have any coincidence with the interests of the protected party. You see this all the time: in trust&estate law, environmental law, family law, corporate law. Litigation loses its adversarial character when the court has to consider the interests of the protected party as separate from those of the surrogate. Courts just don’t perform as well.
I think that this explains the bias toward public enforcement.
— Joe S. · Sep 17, 04:19 PM · #