Back from vacation, rested, and rarin’ to go: Time for SHS to catch up!
Let’s start with an important but little c0vered story: Senator Saxby Chambliss (R=GA) has put a “hold” on the nomination of Harvard Law Professor Cass Sunstein to be what is sometimes called the “regulations czar.” And for a very good reason: Sunstein wants animals to have the right to sue their owners in court. From the story:
Saxby Chambliss (R-Ga.) has blocked President Obama’s candidate for regulation czar, Harvard law professor Cass Sunstein, because Sunstein has argued that animals should have the right to sue humans in court. Obama has picked Sunstein, his adviser and longtime friend, to head the Office of Information and Regulatory Affairs, an office that has power to review and assess all draft regulations proposed within the administration.
But Chambliss worries that Sunstein’s innovative legal views may someday lead to a farmer having to defend himself in court against a lawsuit filed on behalf of his chickens or pigs. Chambliss told The Hill that he has blocked Sunstein’s nomination because the law professor “has said that animals ought to have the right to sue folks.” Indeed, in his 2004 book, Animal Rights: Current Debates and New Directions, Sunstein wrote: “I will suggest that animals should be permitted to bring suit, with human beings as their representatives, to prevent violations of current law.” More specifically, he wrote: “Laws designed to protect animals against cruelty and abuse should be amended or interpreted to give a private cause of action against those who violate them, so as to allow private people to supplement the efforts of public prosecutors.”
As I explain in my forthcoming book, this issue is known as “animal standing,” and it could not be more important–or more alarming that a high Obama appointee believes in it–because if it were ever to be implemented, it could destroy animal industries. That, of course, is the point
The animal standing controversy is rarely discussed outside of animal rights and animal law literature. We’ll soon change that. I will have a more extensive exposition about this most important matter soon.
July 5th, 2009 | 11:40 pm
Three comments:
1. Why is it considered likely that Sunstein will impose this view on anyone else? It seems to be a pretty unremarkable academic proposal, given that he references current law. Furthermore, it seems like the sort of view that one can separate from one’s day job.
2. Would you have the same reaction if legal persons were allowed to sue on behalf of fetuses? Why or why not? Is it possible that you simply have different presuppositions on the moral status of human fetuses and of non-human animals?
3. What if his views ever-so-vaguely threatened the ‘fetus industry’ – would you object to such a threat?
This is not to say that one cannot object to Sunstein’s view, but only that it is not as crazy as your alarmist rhetoric makes it seem.
July 6th, 2009 | 1:35 am
Giving animals “standing” to sue in court would be to permit animal rights ideologues to take any animal industry to court. Not only would that make insurance impossible to obtain for many industries, but it would open these businesses and individuals to “discovery” fishing expeditions and cost a fortune in lawyers’ fees even for frivolous cases. In addition, if the law permitted fee recovery, it would generate an industry in animals suing. Of course, animals would have no idea what was being done “in their names.”
It would result in chaos. It would obliterate the food, medical research, and pet industries, just to name a few. Which, of course, is precisely the point.
More soon.
Thanks for visiting SHS.
July 6th, 2009 | 2:56 am
Steve says,
“Is it possible that you simply have different presuppositions on the moral status of human fetuses and of non-human animals?”
Well, yes, of course. And our presuppositions inform what we consider “crazy” and/or unacceptable.
And given (a) the presupposition that there IS a fundamental difference between animals and humans, and (b) that there is NO such fundamental difference between unborn and born humans, it would be perfectly consistent to object to Sunstein’s view (regardless of how likely it is that it will influence his discharge of his proposed office) while welcoming “standing” for human fetuses.
This is “alarmist” only when one assumes that there is no fundamental difference between animals and humans, and standing for fetuses would only be objectionable when one assumes such a fundamental difference between unborn and born humans.
Since political opinions are largely based on worldview and presuppositions, and since congressional confirmation hearings are a political process, it is perfectly legitimate for Sen. Chambliss to consider Sunstein’s view on the subject an obstacle to the confirmation.
July 6th, 2009 | 3:23 am
“Why is it considered likely that Sunstein will impose this view on anyone else?”
Because the man is obviously a head case. Proposing such an idea at a private party between tokes is one thing. Allowing such drivel to be published under one’s own name shows a complete disregard for one’s own professional reputation, at the very least.
July 6th, 2009 | 12:27 pm
Hogwash!
Animals do not have any ‘rights’. But we certainly have an obligation to treat animals as humanely as possible. Animals are just that: only animals. Human beings are more than just animals.
I find it disturbing that the POSTUS thinks so little of unborn humans yet would consider hiring a man with this squirrelly thinking.
July 6th, 2009 | 12:27 pm
Wes, although I think Sunstein addressed this issue more out of sheer pointy-headed intellectualism rather than firmly held ideology, you’re entirely right about the legal issue. This is exactly the basis upon which the Humane Society of the United States was denied the ability to essentially shut down all circuses with animal acts (everything but Cirque de Soleil, pretty much). It’s a basic tenet of American law that you can’t just jump into a situation and file a lawsuit; you have to have “standing,” that is, you have to prove you have some direct interest in the situation.
Ironically, you can only sue over harm to an animal if you can establish some legal ownership of that animal — a concept the AR’s find abhorrent, but which is essential to legal protection of domestic animals.
July 6th, 2009 | 1:34 pm
Padraig. Exactly. If animals have standing, they clearly have an interest. But giving animals standing would really be to give a social and political movement standing, a movement dedicated to destroying all animal industries. It would also create work for all of those young law students taking animal law at Harvard, Yale, etc.
July 6th, 2009 | 5:21 pm
Isn’t it possible that this position could be morally serious? We probably all agree that anti-animal-cruelty laws are a good thing and need not be grounded in utilitarianism–they can find their foundation in a belief in human dignity (we proscribe animal cruelty not because we are animals, but because we’re not animals–my understanding is that Neuhaus, among others, held this POV).
Given that, isn’t it at least reasonable to suggest that people be given standing to sue on behalf of animals who were victimized in violation of currently existing anti-cruelty laws? It would simply be intended as a way of placing enforcement of the laws with people whose incentives were better-aligned with it (anti-cruelty activists) rather than people with weak incentives (federal regulatory enforcers, who we probably all agree stink at their job).
Now, this might be unwise, and probably would be; I’m skeptical of anything that gives the plaintiffs’ bar more power. But I’m not sure it’s a sign of a disastrous trans-species utilitarianism. Destroying animal industries may be “the point” in the sense that it’s the reason peta would support such amendments, but I don’t think it’s “the point” in the sense that it’s the reason Sunstein would support such amendments. (And I don’t think the head of the OIRA is in a position to effect such changes, right?)
I feel like Sunstein is as close to an acceptable appointment as us conservatives and reasonable folks can hope for from Obama in any position, ever. I hate to spend time attacking such folks when, if they were replaced with a different nomination, it would almost certainly be someone worse!
July 6th, 2009 | 5:26 pm
I’d add that I think Sunstein would be completely open to the suggestion that such a cause of action would be hijacked by people who’d try to abuse it (by using discovery costs to shut down industries with frivolous suits and such). Of course, this is a policy problem with every cause of action in civil litigation; if people aren’t always trying to use it to destroy an industry, there’s still incentive for them to use it to try to get settlement money.
July 6th, 2009 | 5:54 pm
Giving fetuses standing, no doubt, would also destroy a whole entire industry of reproductive services. The idea that animal standing reflects something entirely different is nonsense; in both cases entities (the best word I could come up with to cover both animals and fetuses) who cannot represent themselves in court are given standing through representatives or guardians. The idea itself of such appointees is not controversial, as we do it all the time in cases of juveniles and the mentally incompetent.
What IS controversial is who should be given this kind of standing, not the fact that we give standing to people who can’t represent themselves.
July 6th, 2009 | 6:09 pm
This is a serious proposal. It is disastrous precisely because it treats animals as the equivalents to incompetent human beings. Granting animals standing would be to make them into legal persons. The world would never be the same. Now, that is what the animal rights activists want, human/animal moral equivalency. But in my book, it would be a disaster and would end the unique moral status of human beings.
As to fetuses having standing, that could destroy the abortion industry, but I don’t see it destroying reproductive medicine as a whole. And, by the way, the reason pro choice proponents would oppose adamantly oppose fetal standing is that it would grant fetal personhood, which would grant fetuses a right to life, etc.
Whatever arguments could be made for fetal standing would be based on their status as gestating human beings. Far more radical to grant legal standing to non humans, it seems to me, and definitely subversive of human exceptionalism.
Thanks for jumping in.
July 7th, 2009 | 5:55 pm
Brings a whole new meaning to the term “kangaroo court”!
There’s a difference between believing that humans should prosecute one another for animal abuse and suggesting that the animals themselves actually have legal standing. The latter way is precisely how Sunstein has worded it (which could be his mistake).
How would you like to be ordered to pay damages to a chicken? Ridiculous, no? Money would be of no use to it; how does one measure pain and suffering in pounds of birdseed, anyway?
On the next episode of Judge Judy…
July 8th, 2009 | 10:57 am
There’s a difference between believing that humans should prosecute one another for animal abuse and suggesting that the animals themselves actually have legal standing. The latter way is precisely how Sunstein has worded it (which could be his mistake).
Right, but the tricky part is that it’s so hard to identify the “victims” of animal cruelty who can advocate on their behalf and ensure prosecutions. In some sense it’s the animals themselves; in another sense it’s society at large; in another sense it’s the perpetrator. In any of these cases, it’s very hard to see who will have a strong interest in investigating and prosecuting the laws. Sunstein’s suggestion may not ultimately be prudent (I’m inclined to agree with WJS) but all he’s suggesting is that activists be given the right to sue “on behalf” of animals under the already-existing animal cruelty laws. Giving the animals standing is, in his suggestion, just the technical means by which activists would be enabled to do this.
And I doubt Sunstein would object to legislative hedges against a slippery-slope effect giving animals a broad form of legal personhood.
I’m not supporting this proposal, just pointing out that it doesn’t say Sunstein himself is beyond-the-pale, because it’s not an outrageous suggestion that’s incompatible in theory with human exceptionalism (I don’t think WJS has suggested this, but several commentors who’re obviously unfamiliar with Sunstein have). I probably disagree with Sunstein on every issue, but I also know he’s likely the least radical person in the Obama administration.
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