Keeping Faith in a System That Doesn’t Always WorkPosted by Carter Dillard, ALDF's Director of Litigation on May 3, 2013
How many times have young activists, sometimes just out of high school, stopped me and asked "What is the best way to help animals?" I used to tell them: "Go to law school, the way I did, and make the legal system work for animals."
I say that less now.
I’ve learned the hard way the system only works for animals when judges, prosecutors, and regulators rigorously apply the law. Yes, we need better laws for animals; but there are good laws that can help animals right now–laws that lawyers and law students can find, if they search hard, and can bring before our courts and other officials to change the way animals are treated.
But our officials and even judges are only human, as Matthew Liebman recently pointed out, and are inevitably part of a culture where most animals are for eating or wearing, and little else. And yes, lawyers representing animals’ interests are asking officials to apply the law so that sometimes animals’ interests come out over what some humans, standing there in court and backed by expensive lawyers, are asking for. Doing that cuts against much in our culture and even our base nature that says "but it’s only an animal!"
When that happens it is crucial that officials keep this in mind: Laws that protect animals represent a special political compromise between humans, a limitation on our behavior derived from our democratic process that says: there are some things you cannot do to animals. Animal law is that special compromise, settling what would otherwise be violent disputes between animal abusers and the more brave and compassionate among us that would step in to prevent the animals’ abuse. As the Court of Appeals for the District of Columbia said in 1908:
Cruel treatment of helpless animals at once arouses the sympathy and indignation of every person possessed of human instincts,–sympathy for the helpless creature abused, and indignation towards the perpetrator of the act; and in a city, where such treatment would be witnessed by many, legislation like that in question [anticruelty law] is in the interest of peace and order and conduces to the morals and general welfare of the community.
Johnson v. District of Columbia, 30 App. D.C. 520, 522 (D.C. Cir. 1908)
But when our officials refuse to apply the dominant standards in the law that speak directly to how animals are treated, and instead find some way out by focusing on handy doctrines that speak to less pressing values, they are breaking that compromise. They are wearing down the basic structure of our system by eroding confidence that the compromise about how animals ought to be treated will actually be enforced, and they are promoting public indignation and outrage by not applying the law so as to actually stop the illegal cruelty. In short, by not applying the law and instead finding a way out, they are doing exactly what the Johnson court warned against.
And despite lawyers’ resistance to being open and honest and critiquing public officials, as I am doing now, it is especially important to do so when it comes to animal rights because these cases involve a burgeoning social movement that is relying upon officials to enforce a compromise between millions of people over a potentially explosive moral issue: if and when the suffering of innocents is justified. For that reason lawyering (and officiating) for animal rights is not like other forms of lawyering, not like representing two businesses disputing a contract where there is little reason for objective moral outrage.
Lawyering for animal rights carries with it a duty to critique the system, to point out where it fails, because animal rights cases put so much more at stake; public peace and order are contingent on the system actually applying the rules–the terms of agreement–that come out of the political compromise because as the Johnson court pointed out cruelty brings, and ought to bring, indignation. Officials who do not apply the rules, who do not enforce the contract, are inviting return to the underlying political dispute much the way courts in the South invited dispute and dissidence by refusing to apply the emerging civil rights laws of that era.
Today I tell fewer young people to go to law school if they want to help animals. Many young activists think I’m an old fool for believing officials will simply, and boldly, apply the law even when it means an animal will triumph. Law students know that animal lawyers, even when there are blatant violations of the law, spend most of their time arguing about why they and their clients have the right to even be in court, why they have legal "standing." They know about the legal doctrines, invented by judges, designed to get cases thrown out of court to minimize the courts’ workload.
These students tell me they will find other ways to help animals. They know the horror stories told to them by lawyers who practice animal law–regulators who ignore their own rules, prosecutors who pretend animal cruelty laws don’t exist when the abuser is powerful or a profit-making enterprise, and judges who find any excuse under the sun to avoid actually applying the law.
I find it harder to respond to the more cynical students because I have seen the difficulties first-hand: a small-town judge in Pennsylvania that acquitted the locally influential Esbenshade Farms without even trying to explain why, despite video evidence of hens dying of thirst and impaled on broken cage wires; the New York court that dismissed a case against foie gras producers by relying on arguments the plaintiffs never made; the federal judge in Washington, D.C. whose clear animus towards a witness has meant millions of dollars that were donated to help animals instead being sent to an industry that actually abuses them; and a state court judge in California that "equitably abstained" in a cruelty case, citing the burden of hearing a case that involved too many animals and out of deference to federal authorities, even when Congress and those very authorities have encouraged courts not to abstain.
Any judge, prosecutor, or regulator that deals with animal cases should spend some time with the young lawyers that I do, the ones that, despite the horror stories, made the choice to become animal lawyers and to at least try to see justice carried out. They come fresh out of law school, eager and perhaps naïve enough to want to use the law to help animals. They have enough faith in our legal system (which pays these officials’ salaries) to get all the way through law school, and to work for a fraction of what they would have earned–simply because they want to make animals’ lives better. I think officials would have a harder time ignoring animal law if they saw the faith I see in these young lawyers.
Being around these young lawyers reminds me why I work for animals. Many officials do apply the law, whether it’s prosecutors charging Michael Vick, USDA officials fining the notorious Ringling Brothers’ Circus, or a court in North Carolina recently ordering the release of Ben the Bear. To see young lawyers reacting to our system–when it works–makes it worth doing this work. They see their hard work to make our political compromise real and effective actually pay off, and not just for them but for everyone relying upon our system, including animals. I hope they keep their faith–at least long enough to become officials themselves, but with the respect for animals that our law, if not our culture, often shows.