Notes on The Atlantic Article by Annie Lowrey on the "Radical Vegans" of Direct Action Everywhere (DxE)

 Annie Lowrey, "Radical Vegans are Trying to Change Your Diet," September 20, 2023, The Atlantic. 

• From the opening paragraph: "Everything, everywhere in this farm for 'free-range' chickens was covered in excrement."

• Calling a factory farm a farm is to employ a misnomer.

• DxE supports a Constitutional amendment to grant nonhuman animals legal personhood.

• Lowrey is a vegan: "I believed in DxE’s mission. About its tactics, I wasn’t so sure." She details the personal and social depredations of being a vegan, which is "exhausting, abstemious, weird." 

• The blossoming of animal rights activism post-Animal Liberation was curtailed in the 21st century by legal suppression and limited success. Incrementalism, such as promoting cage-free eggs or gestation crate bans, did make some progress. But animal exploitation continued and the amount of such exploitation globally expanded.

• Wayne Hsiung, a co-founder of DxE, along with others, looked into the theory, practice, and history of social change. Non-violent direct action like boycotts and sit-ins seems to be a key component in a winning reform movement. 

• DxE hopes to turn vegans into activists, in an effort to meet the critical mass that makes social change likely. Their goal is to end animal exploitation quickly, within a generation: here's their roadmap. Their tactics include low-risk activities like protests, to higher-risk strategies like open rescues and working undercover.

• Lowrey describes the DxE 2021 protest at a slaughterhouse and factory chicken farming operation, operated by Foster Farms -- she was there, covering the event as a journalist.

• The critical mass of activists isn't enough, Lowrey argues. In addition to the committed vanguard, you need tons of tacit supporters. You start with the tacit group to recruit the activists. The opposite approach -- have a vanguard but little support beyond it -- will not work in achieving reform goals.

• DxE remains small, however; PETA is much larger. DxE's tactics seem to be a turn off even for many vegans, and some people consider it to be a cult. 

• Will DxE tactics help to bring the median voter, an omnivore, to their side? "There’s a big gap still between your average animal-loving American, who wants the government to ensure the welfare of the cow in her burger, and your average animal-rights protester, who wants to grant that cow constitutional rights."

• Maybe the animal activists will win due to causes related to, but not directly concerning, animal welfare, such as climate change or cultivated meat.

• Radical vegans often are annoying and have little prospect of achieving their goals -- they are also right, that the horrors of factory farming are unspeakable.

On the Supreme Court Case, National Pork Producers Council v. Ross, May 11, 2023

California's Proposition 12 effectively bans gestation crates by requiring sows to receive at least 24 square feet of space. Gestation crates have been illegal in California for almost a decade, but Prop 12 applies to sales (in California) of (whole, uncooked) pork produced elsewhere, not just in California – and it is this extra-state application of the California rule that lies at the crux of the Supreme Court case, National Pork Producers Council v. Ross (pdf).

The case was at the Supremes to reconsider the lower courts’ decision to grant a motion by California (Ross) to dismiss the case. Had the Court ruled against California, presumably the case would have been remanded back to lower courts to hold a trial looking at the merits of the Producers Council's claim that Prop 12 violates the US Constitution. But in what was certainly a surprise to many Court watchers, the Supremes sided with California, and hence the previous dismissal of the case is upheld. 

It was a very close call! Five justices (Gorsuch, Thomas, Kagan, Sotomayor, and Barrett) voted to uphold the dismissal – but no more than four agreed as to a reason for their vote. Gorsuch, Thomas, Sotomayor, and Kagan all agree that the petitioners had failed to allege substantial harm to interstate commerce, and hence that the dismissal was proper. Three justices, including once again Gorsuch and Thomas, but this time accompanied by Barrett, believe that the applicable legal test, known as Pike balancing thanks to a previous case, cannot be applied to Prop 12, as the costs and benefits that it implicates are incommensurable; that is, the dismissal is appropriate because the balancing test is beyond the competency of the courts.

Meanwhile, four justices (Roberts, Kavanaugh, Alito, and Jackson) favored sending the case back to the lower court, arguing that the district court had erred in finding that the pork producers had not managed to allege a significant burden on interstate commerce. 

The Supremes were unanimous on one point: the far-reaching claim of the Pork Board – that there is an "almost per se" rule that state legislation involving external costs is a violation of the Dormant Commerce Clause – is incorrect; see footnote 4, p. 27, in the opinion of the Court. 

The case evoked five opinions in toto: (1) Gorsuch writing for the Court (for the most part); (2) Sotomayor (joined by Kagan) (substantial harm not shown); (3) Barrett (incommensurable costs and benefits); (4) Roberts (joined by Alito, Kavanaugh, and Jackson) (Pike balancing can and should, according to our previous jurisprudence, be undertaken); and (5) Kavanaugh. Justice Kavanaugh's partial dissent provides a roadmap for overturning Prop 12-type regulations in the future. Kavanaugh notes that six justices uphold the Pike balancing test as good law. So future litigants, do a better job (or convince the Court to believe you did a better job) at alleging substantial costs, but also consider using other Constitutional doctrines, not the Dormant Commerce Clause, to bring your challenges to unfriendly (to you) but non-discriminatory state laws. (Thomas and Gorsuch are no fans of the Dormant Commerce Clause, which has no explicit textual basis in the Constitution.) Try the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause instead, Kavanaugh suggests.

I'm pleased with the result, though not pleased with the Kavanaugh opinion and with Justice Jackson's choice to not join the majority. I recognize that the two reasons seized upon for upholding the dismissal, incommensurability and a failure to allege significant harms, are rather weak reeds. Courts balance incommensurables all the time, it is a major element of their job. The failure-to-allege-significant-harms view is more defensible, in my opinion, but one that might be overcome with better lawyering, as Justice Kavanaugh suggests. Down the road, I expect that the Court will have to decide whether better conditions for animals are worth the costs that are imposed on out-of-state producers (though only if they choose to continue to sell in the state with the higher welfare standards), and the opinions in National Pork Producers Council v. Ross lead me to think that there is a pretty good chance that the animals will not win. I find the Roberts and Kavanaugh opinions to be pretty devoid of empathy for the pigs! On the other hand, Justice Gorsuch did display a soft spot for animal welfare, or at least that is how I read pages 2 through 4. 

My favorite phrase appears on page 21 of the opinion, when Justice Gorsuch points out that Congress has the power to to adopt rules for interstate commerce, so perhaps that is the right avenue for the Pork Producers to pursue: "it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street." Admittedly, I fear that in the upcoming Farm Bill, Big Animal Ag will make headway convincing Congress that we need to allow worse treatment for our animal cousins.

Related references from October 2022:

Kenny Torrella at Vox lays out the case prior to the oral arguments at the Supreme Court.

Law professors Mariann Sullivan and Michael Dorf, in episode #89 of the Animal Law podcast, explain the legal niceties shortly after the oral arguments. 

Related references from May 2023:

Justin Marceau and Doug Kysar at Vox.

Sullivan and Dorf return to Animal Law!

Castelló (2022) on Aussie Wild Animals

Pablo P. Castelló, “A Strategic Proposal for Legally Protecting Wild Animals.” Journal of International Wildlife Law & Policy 25(2): 103-134, 2022.

• This article looks at how wild animal interests might be protected under the Australian Constitution. Its argument builds on Donaldson and Kymlicka: animals need rights to self-determination, individually and communally. So Castelló takes as a starting point the notion that wild animals have interests and deserve some fundamental rights.

• One advantage of providing fundamental rights is that it makes backsliding, retreating on the rights of wild animals, more difficult.

• The approach here is intended to pragmatic, keeping (Australian) political feasibility in view.

• Currently, a division between wild and domesticated animals reaches Aussie common law through roots in Roman law: wild animals are things that can become some human’s property through appropriation.

• “…members of endangered species have strong protections under Australian law [p. 107].” Many wild animals lack similar protection.

• Currently, wild animals can be hunted, can be domesticated (into human property) and/or confined, or be killed if they are viewed as threats.

• In the author's proposal, individual wild anymals and their communities will have rights to political representation; to not be property; to territory; and to self-determination. They, and their ecosystems, are protected against human harm and activities.

• Self-determination is meaningless without territory (p. 109), and anymals need habitats protected against human-induced harms to survive.

• The proposed self-determination is internal: anymals do not have the right to secede, for instance. A similar form of internal sovereignty currently applies to some Australian indigenous peoples.

• Self-determination precludes being someone’s property. Hunting, capturing, or domestication are inconsistent with a right not to be property; nor could wild animals be sold. 

• The right to political representation requires some humans to serve as proxies.

• Castelló proposes a new category, “legal animalhood."

• Horses were brought to Australia in 1788; wild horses can trample the individuals and habitats of smaller species. Should the horses be culled to protect other anymal habitat? Better to nudge the horses away – and such nudges (as opposed to killing) are required to respect the self-determination of wild horses.

• To be a wild animal with the rights suggested, you must live in a Wild Animal Territory and participate in a Wild Ecosystem. Much of Australia (40%) would qualify as a Wild Animal Territory – and such a designation would hold minimal impacts on humans, as these areas are thinly populated by humans.

• Even now, the existing category of “Territory” in Aussie law does not require that inhabitants receive parliamentary representation. 

• Territories in which there is an element of sovereignty for indigenous peoples would not be required to become Wild Animal Territories.

• An animal who wanders out of a Wild Animal Territory would lose their status of legal animalhood.

• Fishing is popular in Australia, so for practical reasons, marine animals would not benefit at first from legal animalhood.

• In some property rights alternatives to "legal animalhood," the rights are easily infringed, and hunting, for instance, would still be permitted -- but not for wild animals within their territories under the author's proposal.

• Alternative legal approaches to ecosystems do little to protect the interests of individual anymals – they are not centered on self-determination.

• The “new conservation,” an econ-style environmental approach, takes it as a given that anymals are resources to be consumed or managed by humans.

• Castelló's approach, however, does share the spirit of the ecocentrist vision of Nature Needs Half.

Javanaud (2022) on the Ethics of Using Horses for Recreation

Katie Javanaud, “The Ethics of Horse Riding, Sports, and Leisure.” Journal of Animal Ethics 12(2): 158-171, Fall 2022. 

• After cruelty towards a horse in the 2020 Summer Olympics was brought to light, the pentathlon event dropped equestrian jumping as one of its five legs. (The 2020 Olympics were moved to 2021 because of the pandemic.) Also in 2021, the BBC broadcast a documentary, The Dark Side of Horse Racing, made clear that the abuse of race horses was a common occurrence.

• "Only through acquaintance with practices commonly found in these settings [everyday situations like rising schools and livery yards], can we begin to challenge and to change dominant attitudes and narratives which portray horses as commodities, objects, and instruments for human entertainment or use [p. 159].” 

• Abolitionism traces animal abuse to the property status of animals. Being a benevolent master to an enslaved animal is still to operate in an unethical system.

• But can’t a dog (or a horse?) be a family member and well-treated even if “property” in the law?

• Legal personhood for anymals would eliminate any treatment that was not in the animal’s best interest. For horses, personhood would rule out racing and jumping competitions.

• But can we make these competitions better before they are banned? Are welfare-improving moves delays, or assurances against backtracking (p. 162)? Can informing and educating humans about their similarities' to anymals serve as a palliative strategy?

• Some human/horse interactions (even within the human leisure realm) appear to be mutually beneficial; nonetheless, in the current environment, horse interests are frequently sacrificed to rider interests. 

• British riding schools are woefully underregulated. Horses are overworked and overburdened; inexperienced riders and the horses have little opportunity to bond pre-ride; schools often foreground ease for the human riders: jump-on, jump-off.

• The Donkey Sanctuary has helped adopt better regulations for donkeys – daily and weekly time off, weight restrictions, and so on. "It is time similar legislation was enacted to protect other equines [p. 164]."

• Spacious group housing is best for horses; better vet care and retirement conditions are requisite.

• Competitions lead to pushing horses to or beyond their limits. Horses are transported to a new area, and surrounded by unfamiliar horses and humans. Some competitions do not provide sufficient protective gear and veterinary care for the horses. 

• Horse parades are judged based on qualities that humans find appealing; these qualities don’t align with horse wellbeing.

• Livery yards which board and sometimes rent horses also are under-regulated: bad conditions can persist for years. Horses can suffer from a lack of exercise and companionship, along with poor nutrition.

• Horses in livery yards can develop stereotypic behaviors, which then are responded to as if  they are the fault of the horses ('stable vices'). 

• Good livery yards are consistent with horse flourishing. 

Porcher (2017), "Animal Work"

Jocelyne Porcher, “Animal Work.” Chapter 16, pages 302-318, in The Oxford Handbook of Animal Studies, Linda Kalof, editor, 2017.

• Besides the more obvious ones, working animals include “rats who detect landmines, vultures who find bodies on mountains, and cetaceans who help in climate studies [p. 303]”

• The notion of "natural behavior" for domesticated animals is misplaced. Effective animal workers need recognition, though this need is generally neglected. 

• “We owe an immeasurable debt to domestic animals that we do not seem to have any intention of honoring [p. 303]”

• Both abolitionists and high-tech folks (behind animal-free foods) are seeking a world without domestic animals -- are we trying to reject our own animal nature?

• Animal work can be mutually rewarding, and can co-construct our identities; for anymals, work is important, but it is not about production. Our pets work.

• Anymal activity (like beavers building dams) is not work (in the author’s sense) unless it aims to make the world more habitable both for the anymals and for humans (p. 307).

• Human or anymal work is not just drudgery when its outcomes are judged to be useful by the hierarchy and beautiful by peers – again, social recognition is central.

• Farm animal death greatly complicates the “working” lens -- a complication that doesn't arise in other sectors.

• In anymal work, humans and anymals must successfully engage in inter-species communication (p. 311).

• Affection is needed for successful animal work, but humans often need to keep affection in check.

• Cooperation (and hence confidence) is indispensable for successful anymal work; rules and their infringements are negotiated.

• The anymal capacity to co-create and alter the rules makes the work interesting for them (p. 313). 

• But work isn’t play, as one can always stop playing.

• Anymals understand when work is over (p. 314).

• Anymals want to give pleasure to their human partners, and vice versa – they like connection, it is a part of recognition.

• Better retirements for working anymals are a neglected element of recognition.

• Affection and death are the elements of (large-scale) animal work that are not a part of human work.

Simar Bajaj in The Guardian on Pig-to-Human Heart Transplants

Simar Bajaj, “Pig to human heart transplants are the future. Are we ready for it?” The Guardian, August 4, 2022.

• In 1984, poor Baby Fae lived only 21 days after receiving a baboon’s heart. Interest in xenotransplantation shifted towards pigs…

• … that conveniently are not covered by the Animal Welfare Act. Pigs are economically convenient, too, as organ sources, by growing quickly and having large litters.

• On an operating table, pig chests look remarkably like human chests!

• In 2022, a (human) patient lived for two months after receiving a transplant of a pig's heart. 

• The (accepted?) use of pigs for food can become an argument that it is ethically fine to use them as organ manufacturers.

• Revivicor uses CRISPR to create genetically-modified pigs. They are raised without their moms and in a sterile, indoor environment. 

• Pigs and humans are genetically close, sharing 98% of their genes; for Revivicor xenotransplants, 4 pig genes are knocked out, 6 are added.

Caballero (2022) on Xenotransplants

Arnulfo Caballero, “Sin or Science: The Legal and Ethical Implications of Growing Human Organs Inside of Pigs.” Animal & Natural Resource Law Review XVIII: 239-265, August 2022.

• The development of CRISPR eases transgenic engineering – one result is the AquAdvantage salmon.

• CRISPR makes it easier to produce hybrids (like mules) and chimeras (mosaics, not blends, like the Geep)…

• …so we might be able to grow a human organ inside a pig.

• Many Americans are in dire need of a heart or kidney transplant, but do not receive one in a timely fashion. Xenotransplants, using pig organs to place into humans, usually result in the organ being rejected by the human host. Genetically-modified pigs can reduce this rejection problem.

• Chimeric pigs can produce actual human organs; presumably such organs are less likely to be rejected after transplant than are standard xenotransplants.

• Does the Animal Welfare Act apply to pigs used for making human organs?

• The FDA has oversight over CRISPR-related therapeutics, exercised through the Center for Biologics Evaluation and Research.

• GMOS are patentable in the US – but patentability might not extend to complex ge lifeforms (such as minotaurs (p. 257)?) involving human DNA.

• 3D printing to the rescue (of the pigs)? An organ recipient’s own cells could be used to generate the 3D printed organ!