Animal Law, Enforcement Gaps, and Anti-Intellectualism

We’re a little late to this party, but not so long ago, Cass Sunstein, the sitting administrator of the Office of Information and Regulatory Affairs, came under fire for a “controversial” article advocating for some form of “animal standing” — a way for third parties (non-owners) to stand in the shoes of an animal and allege a violation of an existing law.

On that definition, the parade of horribles urged by the radical right doesn’t really come to pass. Cass isn’t talking about leveraging murder laws against factory farmers, or generalizing laws that protect humans, or, really any attempt to kill the meat industry. He’s addressing solely the enforcement gap in animal law that arises because (1) not all animals have owners capable of advancing their interests, and (2) the state isn’t equipped to pick up the slack.

This should be noncontroversial. American law already has a delightful privateer element to it in almost every other aspect: private citizens can enforce rights that others can’t, and that the government can’t be bothered to enforce. Citizens can sue on the government’s behalf, in qui tam suits, under a complicated series of rules that just aren’t worth explaining here. Even though the statute doesn’t expressly so provide, aggrieved citizens can sue for securities fraud, because the SEC isn’t really equipped to handle every significant violation of the Securities & Exchange Acts. And the class action mechanism lets groups of citizens take on a enemies out of all proportion with their ability to act alone, and bring large wrongdoers to heel from a position of strength. Government can’t be everywhere policing wrongdoing; but citizens with lawyers can. Why not here too?

Cass had a good idea, and caught flak for it. Perhaps that’s the larger point: years of distorting the records of intellectuals has primed the public to accept similar narratives. When we hear that a prominent academician said something crazy, our first thought is not to investigate, but to shake our head at the out-of-touch ivory tower intellectuals. This is a luxury we no longer have. We need smart solutions to tough problems, and creativity should be rewarded.

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2 comments

  1. I had not heard about this party… but I have heard about people using, or attempting to use, this “animal standing” sort of legal rule in… Germany, I think it was.

    1. It’s not entirely comparable, given the differences in legal systems, but yes – in Germany, environmental organizations can bring a sort of class action (“eine Verbandsklage”) against violations of environment protection laws, ‘on behalf’ of the affected areas, as it were.

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