Sherry Colb Responds to My Post on Proposition 2

I received an e-mail from Sherry Colb (Cornell Law School) in response to my recent post disagreeing with Professor Francione’s views regarding California’s Proposition 2. She kindly gave me permission to post it on our blog. As usual, Professor Colb’s comments are thoughtful and informative. Here’s her e-mail:

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Hi Luis.

We have not met, [but] I was delighted to see your new animal blog. The more attention the issue of animal concerns gets, the better. I respect your disagreement with Gary Francione on the California proposition issue, though I think my inclination is to agree with Gary because of the opportunity costs – in lost chances to foster and encourage veganism – associated with large movements to make relatively modest changes in what is a shockingly inhumane world of animal agriculture. I have so often heard people say – when they go to an outstanding vegan restaurant – “if I could eat like this every meal, I would consider becoming a vegan.”

If the Humane Society invested in vegan restaurants and education, more people who find the prospect of veganism frightening or impractical (but ethically attractive) might consider changing. [This is important] because the cruelty that produces eggs and milk is really not better (and can often be even worse) than the cruelty that produces meat. It is not the egg or milk itself that suffered, obviously, but the hens and dairy cows that produce the eggs and milk (and who are kept in horrendous conditions even on “organic” farms and who are killed for meat when their production levels drop) and – perhaps more significantly – the male offspring of hens and dairy cows (the male chicks who are buried alive, gassed and otherwise cruelly killed as babies and the male dairy cows who are robbed of their mother’s milk and then killed as youngsters for veal). Milk simply cannot be produced without impregnating cows, and their male offspring are considered a waste of resources to be quickly slaughtered. I recently had the privilege of visiting Farm Sanctuary, and even though they do press these legislative propositions, their core message is to encourage veganism. The tour guide there had a very compelling line about dairy products – in every glass of milk, there’s a little veal. [Although] we do not know each other, I was eager to reach out because there are so few friends of animals among legal academics.

Good luck on the blog.

Best,

Sherry

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Why We Should Support California’s Proposition 2: A (Brief) Reply to Professor Francione

Several weeks ago, Professor Gary Francione urged people not to vote for California’s Proposition 2 next Tuesday (for a discussion of Proposition 2, see Suzanne McMillan’s post here). He grounded his view on the following arguments: (1) that Proposition 2 will do nothing to alleviate animal suffering in the short or long term, as it will not come into effect until 2015, and once it becomes operative it will seldom be enforced because it is riddled with exceptions, (2) that its adoption will result in increased animal exploitation because it will make the public feel better about the way that factory farmed animals are being treated, and (3) “it is important for animal advocates to send a clear message to the Humane Society of the United States, Farm Sanctuary, and other groups to stop promoting measures like Proposition 2”.

I respectfully disagree for three reasons. First – contrary to what Francione contends – it is impossible to know ex ante whether the adoption of Proposition 2 will result in a decrease of animal suffering in the short term. While it is true that the measure will not come into effect until January 1, 2015, it is unliklely that factory farms will wait until New Year’s Eve 2014 to change their practices to conform to the new law. Some will surely begin confining their animals in a way that allows them to fully extend their limbs or wings and turn around freely well before the 2015 deadline. As a result, we should expect to see animal suffering in California increasingly diminish during the next several years, even if some of the suffering that the measure is designed to prevent won’t be eliminated until after 2014. Furthermore, even if it turns out that animal suffering is not reduced meaninfully until Proposition 2 comes into effect, that is no reason to vote against it. A law that requires farm owners to confine their animals in spaces that allow them to move more freely is better than what we have now, even if it will not become operative for several years. Professor Francione’s contention that the law will not significantly reduce animal suffering in the long term because it is riddled with exceptions is difficult to understand. As was pointed out in an Editorial of the San Francisco Chronicle that urged voters to reject Proposition 2 because it could destroy California’s egg producing industry, “more than 90 percent of [the State’s] 20 million egg-laying hens are kept in the battery cages that would be outlawed under Proposition 2.” This seems to be an accurate estimate, as the measure provides exceptions for scientific or agricultural research, veterinary practices, transportation, state and county fair exhibitions and during the act of slaugthering the animal. While these exceptions certainly allow for the confinement of a significant number of animals in crates and cages that do not allow them to move freely, they do not reach a majority of the 20 million egg-laying hens that are kept in battery cages in California. Therefore, it is odd to claim that Proposition 2 will not substantially decrease animal suffering because of these exceptions. Even if we conservatively predict that only half of California’s egg laying hens will be confined in a larger space due to the new law, we will be able to reduce the suffering of about 10 million animals. While not a perfect outcome, this would surely be a welcome development.

Francione’s claim that the adoption of Proposition 2 will lead to increased animal exploitation because it will “make the consumption of animals more acceptable” is akin to claiming that laws banning restaurants from using trans fat will meaningfully increase the demand for french fries and fried chicken because they make their consumption more healthy. The hard truth is that a great majority of people will continue to eat factory farmed products (and french fries and fried chicken) regardless of whether measures banning battery cages (or trans fat) are enacted. Others – like me – will continue to be vegetarians and avoid french fries even if such laws are adopted. Ultimately, laws like this one don’t exert much influence over people’s eating habits. Therefore, I believe that the fear that Proposition 2 will result in increased animal exploitation is overblown.

Finally, Francione’s claim that rejecting Proposition 2 is important because it sends a message to animal advocacy groups to stop promoting such measures is not really an argument against voting against the law, unless one believes that these types of laws do not significantly reduce animal suffering. For the reasons discussed in the preceding paragraphs, I strongly believe that the enactment of Proposition 2 will meaningfully diminish the suffering of animals. Therefore, I hope that Californians support it and commend the Humane Society of the United States and Farm Sanctuary for promoting its adoption.

Luis Chiesa

What’s Wrong With Dissection Anyway?

CNN reported yesterday (http://www.cnn.com/2008/US/10/14/cutout.dissection.ap/index.html) that 19 year old Jennifer Thornburg officially changed her name to “Cutout Dissection.com” as a way of protesting animal dissection in schools. Her new name also attracts attention to her PETA sponsored website,  http://cutoutdissection.com/ . This story got me thinking about the wrongfulness of dissection. 

As one of the informational brochures distributed by PETA contends,  millions of animals are dissected in schools every year, including frogs, mice, rabbits, fish, worms, and insects. Obviously, I think there are good reasons to ban this practice. Thanks to technological advances, most, if not all, of the educational benefits that are reaped by dissecting these creatures can now be achieved by buying software programs that allow students to engage in virtual dissections.

It should be noted, however, that some organizations, such as the National Science Teachers Association (NSTA), believe that the educational value of dissection sometimes justifies the practice. More specifically, the NTSA argues that dissection may be used by a teacher in order to help students develop skills of observation and comparison, discover the shared and unique structures and processes of specific organisms, and develop a greater appreciation for the complexity of life (http://www.nsta.org/about/positions/animals.aspx).

Assuming that dissection does help students develop these skills, would this be enough to justify the practice? In order to answer this question, I think that it is necessary to understand what is wrong with animal dissection in the first place. Dissection is not wrong because the very act of dissecting an animal is harmful to the creature. Since dissection involves cutting into a dead animal (if they are alive, then the process of cutting into the creature is termed a vivisection), this act is no more harmful to them than an autopsy is harmful to a human being. Thus, the wrongfullness of dissection stems not from the act, but from the unjustifiable suffering that is typically caused to animals that are destined to be dissected before they reach the classroom (they are, for example, sometimes kept in small cages and without food in unhygienic rooms for a considerable amount of time). 

If this is truly what’s wrong with animal dissection, those who – like me – are committed to reducing the amount of suffering that humans inflict on animals must ask themselves whether there are ways in which dissection could be justified. What if we only dissect animals who have died of natural causes? If the wrongfulness of animal dissection is the suffering inflicted by humans on animals before they reach the classroom, why would it be wrong to dissect an animal that died as a result of a natural process? Furthermore, assuming that earthworms don’t have the capacity to suffer, why would it be wrong to dissect them? (BTW, I’m aware that the question of whether worms suffer is controversial. There is evidence tending to demonstrate that they don’t – http://www.planetark.com/dailynewsstory.cfm/newsid/29405/story.htm – but the jury’s still out). 

Although I’m not sure how to answer these questions, I still think that dissection should be banned from the classrooms. Even if it’s unclear whether dissecting earthworms or animals that have died of natural causes is morally objectionable, why do so if computer simulations provide roughly the same educational value? When in doubt, I’d rather experiment on a computer than on an animal.

Luis Chiesa

A quick follow-up from Barcelona…

Over the last several days I have talked to a number of folks about working the animal agenda into the international environmental arena. I am cautiously optimistic about the chances for substantive reform. My conversations with some of the directorate of the IUCN Academy of Environmental Law (an organization of law schools around the world which devote significant resources to the teaching of environmental law) proved productive. I believe Animal Law will make its way on to the Academy’s radar as an important component of environmental law. In addition, I have joined the IUCN Ethics Specialist Group with the expressed intention of promoting this issue within that group. My views and agenda were welcomed there as well.

This will be a multi-year effort that will require diplomacy and patience. I welcome the assistance of any or all who wish to help and I look forward to continuing this discussion both on and off-line.

David Cassuto

California’s Prevention of Farm Animal Cruelty Act (Proposition 2)

California’s Prevention of Farm Animal Cruelty Act (Proposition 2)

http://yesonprop2.com/ ; http://www.humanecalifornia.org/

On November 4, Californians going to the polls will have a chance to vote “yes” or “no” on “Prop 2” – a ballot initiative for a new state statute (Health and Safety Code, Division 20, Chapter 13.8, Sections 25990-25994) — the full language of which is here: http://ag.ca.gov/cms_pdfs/initiatives/2007-08-09_07-0041_Initiative.pdf.

The Act’s stated purpose is “to prohibit the cruel confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.” It would take effect on January 1, 2015.

The Act, if passed, will have the greatest impact on the raising conditions of calves raised for veal, egg-laying hens, and pregnant pigs (except for the week preceding their expected due date).

Anyone found guilty of violating this statute would be guilty of a misdemeanor, punishable by a fine of less than $1,000 or imprisonment for fewer than 180 days, or both.

Similar ballot initiatives have taken place in Florida and Arizona, but neither have extended to as many species of farmed animals and California’s. In 2002, Florida voters banned pig gestation crates by voting (55%) in support of “Amendment 10”, which amended the state’s constitution and became “the first measure ever to be adopted in the United States to ban the confinement of animals on factory farms.” Quote from:

http://www.hsus.org/press_and_publications/press_releases/voters_protect_pigs_in_florida_ban_cockfighting_in_oklahoma.html

Similarly, in 2006, Arizonans voted in favor (62%) of Proposition 204, banning the use of veal crates for calves as well as gestation crates for pregnant pigs. The measure, which amends a state statute (Title 13, Chapter 29), goes into effect in 2012. Arizona remains the only state with a ban on veal crates, and if California’s proposition passes, California will become the second state in the nation to ban veal crates and the third to ban gestation crates. Additionally, it will be the only state to ban, effectively, battery cages.

Information about Gestation Crates “Female pigs selected for breeding in most large pig nurseries are artificially impregnated early in their lives and soon after placed in the crates for their four-month pregnancies. According to Grandin, productive sows will spend several years in the cages while giving birth to five to eight litters. But as the sows get larger over the years, some cannot fit in the cages and are either slaughtered or forced to live in conditions where they can sleep only on their chests, rather than their sides as they do normally. Pork producers and many veterinarians argue that the animals do well separated in the crates and are prone to fighting if housed together in pens. But animal advocates say the pigs suffer greatly in the 2-by-7-foot cages, with many chewing on metal bars and endlessly waving their heads. Grandin said many sows in narrow crates show behaviors she considers abnormal — a sign, she said, that they are suffering. The crates have been banned in Europe for some time.” Quote from: http://www.washingtonpost.com/wpdyn/content/article/2007/01/25/AR2007012501785.html

Information about Battery Cages: “Most eggs produced in the United States come from industrialized factory farms confining hundreds of thousands—if not millions—of laying hens in overcrowded battery cages. Arguably the most abused animals in all agribusiness, nearly 280 million laying hens in the United States are confined in barren, wire battery cages so restrictive the birds can’t even spread their wings. With no opportunity to engage in many of their natural behaviors, including nesting, dust bathing, perching, and foraging, these birds endure lives wrought with suffering. Because of animal welfare concerns, countries such as Germany, Switzerland, Sweden, and Austria have banned battery cages. The entire European Union is phasing out conventional cages by 2012.” Quote fromhttp://www.hsus.org/farm/camp/nbe/

Information about Veal Crates: “Intensive confinement of calves raised for veal has long raised pointed concerns regarding the animals’ welfare. Traditional production practices include individually isolating calves in narrow wooden stalls or pens, which severely restrict movement, feeding the animals an all-liquid diet deliberately low in iron, and prematurely weaning the animals. Stressful conditions lead to a high incidence of stereotypic behavior and illness. Scientific reviews of the welfare of intensively confined calves raised for veal have concluded that the young animals suffer when reared in conventional systems.” Quote from http://www.hsus.org/farm/resources/research/welfare/welfare_veal_calves.html

Suzanne McMillan

The IUCN and Animal Advocacy

I write this post from Barcelona where I am attending the World Conservation Congress, the quadrennial meeting of the International Union for the Conservation of Nature. The IUCN is a unique coalition of countries, NGOs, and others whose common cause is protection of the environment. I am a member of the delegation representing Pace Law School’s Center for Environmental Legal Studies, which is a member of the IUCN. My delegation forms part of the 8000 or so people who have converged on Barcelona for 10 days of meetings and politicking aimed at setting environmental policy for the world for the next four years. Last night featured an address from 2006 Nobel Laureate, Mohammad Yunus and today we heard from Ted Turner.

What does it have to do with animals? Well, that’s exactly the issue. Animal advocacy, which should be front and center at a congress like this, is instead relegated to subtext. Many sessions focus on endangered species, ecosystem and habitat management, and marine mammal protections but nothing specifically treats animal welfare for its own sake, ethics or rights. That gap underscores an issue about which I intend to blog a fair bit in coming days – the schism between the animal and environmental communities and if and how it can be healed.

At first blush, it is hard to see why friction should arise between those whose passion is environmental protection and those for whom animals (who both live in and form part of the environment) come first. One would expect synergy and cooperation between linked causes. Alas, no. Here at the IUCN, for example, animal advocacy cannot even find a place at the table. Not long ago, the International Fund for Animal Welfare (IFAW) applied for membership but was denied because its mission did not align with IUCN’s stated goals of supporting indigenous groups’ right to hunt and of sustainable take policies.

I find this exclusionary policy baffling. Nowhere is the “big tent” approach more necessary or urgent than in the realm of environmental protection. IFAW (and other animal advocacy groups) may have a different set of goals than those who support hunting but both find common cause in IUCN’s larger mission of the conservation of nature. Excluding those who support the protection of animals because they are sentient, self-aware beings whose lives matter for their own sake is divisive and unnecessary. It ignores enormous areas of agreement among the parties and sows dissension instead of unity.

I consider myself both an environmental and an animal advocate. Yet, I do not find common cause with everyone or every issue in either community. In my view, those differences create strength and diversity rather than problems. By contrast, rigid doctrinal requirements undermine momentum towards shared goals and create needless friction among would-be allies.

I intend to raise this issue everywhere I can in the next week and a half and to see what I can do to put in on the agenda for the future. Further bulletins as events warrant.

David Cassuto

Animal Blawg: An Introduction

         

Welcome to the inaugural entry of Animal Blawg: your central repository for the latest information about animal issues as they relate to the legal field. The idea for this website sprang from two Pace Law School professors: David N. Cassuto and Luis E. Chiesa, both of whom sensed a need for a place to discuss the legal and philosophical issues that arise as a result of our relationship with non-human animals.

 

This blog’s scope is intended to be broad, encompassing both legal issues affecting animals and legal issues reflecting animals’ situations. It purports to examine current case law and statutes, as well as the ethical and jurisprudential issues arising from how animals are treated in one of any number of situations. Thus, it presents not only substantive information, but also food for thought.

 

Animal law in the United States has grown over the last couple of decades from a virtual unknown to being one of the fastest-growing areas of legal scholarship and practice. It is now offered on the menu of every Ivy League law school in the nation. Judges increasingly find themselves presiding over cases involving issues of animal treatment, and demand is rising for lawyers who handle such cases. Increasingly, animal law is taken seriously in the professional world, making it ever more important for law students and practitioners to familiarize themselves with its basics and stay abreast of its developments.

 

The term “animal” in this context refers to all non-human animals, thereby encompassing animals kept by humans as companions, as well as wild animals, animals used in the entertainment sector, animals living in zoos, animals used in medical research, animals used for cosmetic procedures, and animals raised and killed for meat, milk, wool, feathers, silk, eggs, fur, hair, skin and other body parts.

 

Various members of the animal law community will be invited to blog on this site, and we look forward to including you in these very important and exciting conversations!

 

Suzanne McMillan, David N. Cassuto & Luis E. Chiesa