March 2024 Animal Law Updates: A New Age of Animal Law

Animal law is a niche field — but calling it a “niche,” or even a “specialty,” can be deceptive because it underplays how broad the field is. February’s Update addressed two big wins in environmental lawsuits, which prevented the destruction of critical habitats in the northern Great Plains and Florida. January’s Update discussed the free speech rights of activists to investigate the mistreatment of animals in agriculture. We picked  2023’s case of the year as the defense of California’s Proposition 12 in the U.S. Supreme Court, which upheld an in-state sales ban on pork produced in reliance on gestation crates, one of the cruelest forms of confinement. Before that, we covered the recognition of animals as family members in South America, a price-fixing antitrust lawsuit against the pork industry, and a petition to the U.S. Department of Agriculture about states’ enforcement of anti-cruelty laws.

All this variety in the field is, to me at least, part of what makes animal law so interesting. But it also raises the question: what’s the most effective type of animal law? Or, put differently: what’s the best way to use the law to improve the world for animals?

Surprisingly, I think, to many, this question has divided the animal law movement for decades. On one end of the spectrum are “Abolitionists,” and on the other end are “Welfarists.” Abolitionists believe that using and killing animals for human gain is inherently wrong and should be abolished. To them, all sentient beings have innate rights including a right to continued life. Welfarists, on the other hand, advocate for measures to improve animals’ quality of life.

It might seem these strategies go hand in hand, but historically they haven’t.  The argument, at the extremes, goes something like this:

Welfarist: Animals are not going to have rights shortly — it’s just not realistic. So, we have two choices: (1) do nothing, or (2) fight for incremental progress and help animals however we can.

Abolitionist: Welfare reforms aren’t progress. Sure, reforms like larger cages for farmed animals make them slightly less miserable, but the animals’ daily existence is still torturous. And every time we celebrate a welfarist victory, we’re sending the message that we can — and do — raise and slaughter animals humanely, which just encourages people to continue eating animal products.

Who’s right? Are welfare reforms progress, or do they ultimately harm the abolitionist agenda?

I don’t pretend to know which side has been right for all these years. In my view, if either side had proof of a clear answer, nobody would be arguing and the movement wouldn’t be divided. So we’ve been stuck making our best guesses and waiting to find out with the benefit of hindsight. Until recently. It’s my belief (and hope) that, in recent years, the rights-welfare divide may finally be collapsing.

A New Age of Animal Law

As a co-author with Cheryl Leahy, the Executive Director of Animal Outlook, and Grace Brosofsky, a trial attorney with Montana’s Office of the Public Defender, I’ve made my best pitch that Abolitionists and Welfarists can now find middle ground because welfare measures can, through market forces, push consumers towards a vegan diet. (The full article is published in the NYU Law Review, and you can download it for free.)

The theory turns on basic economic principles of elasticity. For most consumer goods, price and quantity are inversely related, so price is elastic. Think about your favorite gum. At $0.10 per pack, you might purchase a few packs per week and chew gum all the time. But if the price goes up to $3.50 a pack, you’ll become a bit choosier. By $20.00 per pack, you are probably not buying gum anymore. Price goes up, quantity goes down. But for certain goods, specifically necessities with no real substitutes, demand is inelastic. Concerning inelastic goods, as price increases, the quantity of goods consumers will purchase remains the same. Think about how much you’d pay for drinking water in the middle of a desert.

The demand for animal products has historically been inelastic. This is because there have been very few substitutes for animal products that offer the same taste, texture, and nutritional value, and also because most people (thanks to outstanding marketing and advertising by the meat and dairy lobbies) were raised to view animal products as a dietary necessity—they simply cannot imagine meals without consuming some amount of meat, dairy, or eggs. Insofar as the demand curve for animal products is inelastic, even if welfare measures increase industry costs, the industry will pass on the costs to consumers and will not suffer any monetary loss because consumers will continue purchasing the same amount of animal products. In economic terms, because pricing is inelastic, price increases will have only a small effect on demand (and the number of animals exploited and/or killed).

But all of this may be changing. For the first time in history, the marketplace has and is continuing to develop, close substitutes for animal products, with plant-based products like oat milk leading the way, followed by fermentation-derived and cell-based products. With these substitutes available, welfare reforms that increase the price of animal products can, for the first time, drive consumers away from animal products and towards alternatives.

Does this mean all welfare reforms will now progress towards Animal rights? It doesn’t, at least in our view. The article explains in detail how abolitionists can evaluate which welfarist strategies will ultimately help or hurt their agendas. But for present purposes, it suffices that welfarist strategies can, given the shifting marketplace, become a useful tool for abolitionists, and that there’s hope for a unified animal law movement.

Speak Up Tee By Tiny Rescue: Animal Collection

For more great Animal Law Resources, be sure to check out the Animal Law Podcast and Brooks Animal Law Digest. And you can catch up on all of One Green Planet’s monthly animal law columns:

• February 2024 Animal Law Updates: Don’t Drain the Swamps
• Animal Law Updates: 2023’s Biggest News and Trends for Animals in Court
• November 2023 Animal Law Updates: Will Animals be Recognized as Family Members in South America?
• October 2023 Animal Law Updates: Big Money
• September 2023 Animal Law Updates: A Small Petition With Big Implications
• August 2023 Animal Law Update: Go Local
• July 2023 Animal Law Update: Someone is Suing the FBI?
• June 2023: Animal Law Updates
• May 2023: Animal Law Updates
• April 2023: Animal Law Updates

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