ACE Interviews: David Wolfson

David J. Wolfson is a partner at Milbank, Tweed, Hadley & McCloy LLP. He has published extensively in the animal protection field and has taught animal law at Harvard and NYU. He represents a number of animal protection groups including the Humane Society of the United States, Compassion Over Killing, Compassion in World Farming, and Mercy For Animals.

With the sensitive work that many advocacy groups engage in, from confronting corporations to persuade them to change their business practices, to undercover investigations in factory farms recorded either while on the job or through covert means, legal advisers are essential to groups’ successes. What types of work do you most regularly engage in when helping advocacy groups?

I do a bit of it all, because I work with a number of different groups in various areas. I do work with organizations that act to change the law through legislative activities or ballot initiatives, both on the state and federal levels. Separately, I give advice to groups that are involved in litigation, whether it be against private, third-party entities or against the government. Because I am also a mergers and acquisitions lawyer, I am involved in representing a small number of venture capital organizations that are creating either plant-based meat alternatives or aiming to create cultured meat. I also give general advice on corporate nonprofit work, such as to groups involved in humane labeling. I do a bit of everything, although in a more advisory role, meaning there are usually other lawyers more involved in carrying out the cases on a day-to-day basis.

Over the years, you have worked with many animal advocacy groups, including Farm Sanctuary, Mercy For Animals (MFA), The Humane Society of the United States (HSUS), Compassion in World Farming (CIWF), and Compassion Over Killing (CoK). Can you tell us about your path and motivations that got you to where you are today?

I have been working in animal protection for a long time, but I started working specifically on farm animal issues in the early 90s. I had the opportunity to work with someone named Henry Spira, who was involved with a cosmetics testing campaign, and because of my interest in farm animal issues, he introduced me to a few people involved in that area, such as Gene Baur, Lorri Houston, and Wayne Pacelle, and we hit it off. We ran our first ballot initiative campaign in Florida in 2002, and I took care of the legal side of things. Then, we ran initiatives in Arizona and California, and that naturally led to me meeting Jonathan Lovvorn, Nancy Perry, and Paul Shapiro, because they were the people working on farm animal advocacy at the time. I worked with them on the Hallmark lawsuit, corporate campaigns, and other legislation efforts. While there were other groups doing great work at the time, to me, the HSUS, Farm Sanctuary, CoK, CIWF, and MFA were the most effective groups working in the farm animal advocacy movement, so I chose to work with them for the most part. I’ve had the opportunity to watch MFA grow up, and I have always been particularly struck by their freshness of vision, direct approach, leadership, the quality of their staff, their ability to build strong relationships with others, and their ability to strike a chord with the public.

How much has the legal climate related to animals changed over the course of your career? What factors do you think have been most important in causing those changes?

The legal climate has changed a great deal, in large part due to the significant efforts of animal protection groups and animal rights activists. If you look at the environment where law is taught, the change has been dramatic, even in just the past 5 or 10 years. When I was in law school, there was only one animal law class in the country. I think it was Gary Francione’s or Steven Wise’s. Now, American schools are leading the world in this direction, and something like two thirds of American law schools teach animal law. Schools such as Lewis and Clark Law School and Harvard Law School even have animal policy programs now. Young students are graduating with the view that animal protection law is a serious social justice issue to be focused on and treated with respect. These people will end up as judges and leading lawyers, and will be very influential in society, which I anticipate will have a large impact on the future of advocacy.

The respect that animal law has been given in the past 5 or 10 years is night and day compared to how it was when I began practicing. HSUS and the Animal Legal Defense Fund (ALDF) have led the movement in this capacity, and helped turn animal law into an established area of social justice law activism. Lawyers have provided incredible support for the animal protection movement and have helped achieve many successes. Compared to when I went to law school 23 years ago, the field is unrecognizable, and it’s still improving at an accelerating rate. Each year I see more students, more classes, and more interest.

What are some legal essentials that the typical animal-rights activists should be aware of when they are trying to advocate for animals? Are there any things that you would encourage them to pay attention to or to be mindful of?

There are some important things that farm animal advocates should understand about the current legal landscape. At this point, there really is no federal law that relates to how animals are treated from a welfare perspective. The few state laws that exist are highly problematic and generally fall incredibly short when trying to help animals. Therefore, there is a need to improve the laws in this area.

Unfortunately, at this time, advocates need to recognize that the way that farm animal law generally works is through state criminal laws. While California and hopefully Massachusetts have made some progress in this area, it’s very difficult to regulate the countless different ways that animals are abused through a criminal prohibition on individual practices. Because of the size of the industry, the number of animals involved, and the number of cruel practices, if we ever were to design a law that would deal with every issue we want to address in farmed animal welfare, it would run to thousands of pages. It’s not a practical way to address these issues on any scale. At this time, all that we are able to do on this front is to educate people and remove the worst excesses, such as gestation crates and battery cages.

While we can work on these very specific and worthwhile laws, in order to improve things significantly, we would need a far more detailed administrative law or regulatory system. That sort of system can only work effectively with both an appropriate agency or governmental oversight, and with individual oversight of the governmental oversight. In the United States, at this time, we have neither of these. We do not have agencies that we can trust to enforce a great law even if we were to pass one, and because of the technical laws about how individuals can challenge governmental action, it would be very difficult for individuals to hold such an agency accountable.

Therefore, it is not surprising that the changes in animal well-being are not coming from great laws, but rather from consumer campaigns, where consumers pressure corporations to improve their practices, from social education and veganism, and from venture capitalists who are creating alternative meat products. The fact is that it’s easier to change the world through these approaches at the moment, rather than through some grand regulatory scheme to ensure that animals raised for food are treated well.

For your readers who are interested in learning more about the current status of legal protection, or lack thereof, for farmed animals, I recommend reading a text I wrote with Mariann Sullivan, called Foxes in the Henhouse, available in “Animal Rights” (Oxford University Press).

What advice can you offer to someone who either intends to or is currently pursuing a law degree and wants to help animals? How can they direct their career in a meaningful way?

It depends on what the student wants to do. Unfortunately, the number of jobs for lawyers in the animal protection movement are very limited and very competitive. On an annual basis, I estimate that only 7 new lawyers are hired each year for law positions in the movement. However, if that is their dream, and they want to go get a job at one of the major animal rights organizations working as a lawyer, I encourage people to do so.

However, most students end up going into a more general law practice. My view is that, students should do whatever they are most excited by and interested in. If they are interested in intellectual property law, tax law, or mergers and acquisition, or if their dream is to work at a large firm or at a district attorney, I think they should pursue that. The most important thing is for students to do something that gives them creative energy, enjoyment, and enthusiasm for getting up in the morning. I am certain that those who do that will find a path to assist the animal protection movement. I get questions all the time about intellectual property law, tax law, regulatory law, international trade law, human resource issues, and criminal prosecution, and I refer the questions to experts in those fields. The animal rights movement has a need for advocates in every discipline. At the very least, there is always a need for lawyers to join the boards of nonprofit organizations. My suggestion is for law students to find their passion.

I’d like to ask you about an area that you may be involved in: so-called “ag gag” laws. They are a popular topic for discussion lately, and for good reason: they silence the final voice that animals have. Many organizations, such as HSUS, have successfully struck down a number of these laws, but quite a few of the laws have been passed. What is the best strategy to combat the spread of this type of legislation?

While I agree that these laws set a very harmful precedent, I think it’s important to keep this in perspective. While they have certainly had some success, it has not been overwhelming. Only a small number of states currently have ag gag laws, and some of those only mandate reporting, rather than completely prohibit undercover investigations. One approach to combatting these laws is through litigation. Groups such as HSUS and ALDF have been successful with respect to these laws, either via blocking legislation or by successful litigation, partly because they do great work, and partly because in trying to pass these laws, the meat industry is making a case that is rather difficult.

However, I think that the most effective approach has been in bringing attention to and highlighting what is going on. When closely analyzed by the public, the press, and third parties, the meat industry’s case tends to be rejected and ignored. If anything, I think these laws have had a negative impact on the meat industry, and will be proven over time to have been a harmful position for them to take. It seems that the issue of mistreatment in factory farms is out of the gate already, and that while these laws aim to hobble the animal rights movement, there is too much momentum for it to be significantly slowed down. I don’t mean to denigrate the impact that these laws have had, but when you look at the overall picture, I don’t think that they have significantly slowed anything down. The political climate is not very favourable at the moment for the meat industry to pass these laws. The public is more engaged than ever, there are more meat alternatives, companies are more aware of these issues, and there are still undercover investigations going on in other states.

If you don’t think ag gag laws are a serious obstacle, what would you say is the biggest threat faced by efforts to reduce the suffering of animals?

Probably the biggest obstacle is in the size and complexity of what we are trying to accomplish. First, there is the magnitude of the problem, especially on a global scale: while there have been some great successes in the United States recently in terms of animal advocacy, there are cultures around the world that are increasing their meat consumption. Countries such as Brazil, India and China are developing their very own unpleasant meat production systems. There are many reasons to be hopeful about progress in the United States, but it will take a long time to slow down meat production in other parts of the world, as it is currently still accelerating.

Another difficulty is the complexity of the issue: How do we regulate a system that has so many different types of abuses going on? Even if we manage to pass a good law, how do we ensure that it is enforced? Is it possible to create a labeling scheme for animal products that is believable and effective, given that there is so much abuse involved in even the best systems? Is veganism the only way forward, or is flexitarianism an option? This may sound like a vague response, but we are faced with an incredibly huge issue with no immediate obvious realistic solution. The system itself is brutal, and there is an ingrained cultural viewpoint that this is normal and should continue to exist, even though it is obviously horrible in numerous ways. The process of halting this system is going to take time, and even as we make progress, we will continue to see incredible harm and destruction throughout.

I completely agree with where you are coming from. A lot of advocates get discouraged when they realize that even though we are doing a lot to help animals, it doesn’t stop the fact that a large number are still being killed every year for food. Even so, if you look at the progress that the animal advocacy movement has made in the last 5 or 10 years, we can see many indicators that we are making significant progress, even if it’s not as quickly as we’d all like to see.

That is correct, and there is a lot of evidence that things are changing for the better. There has been an acceleration in media focus, in vegan alternatives in supermarkets and restaurants, and an acceleration of the acceptance of the connection between animal farming and climate change, other environmental issues, public health issues, and workers’ rights issues. Change can happen very quickly, and we are seeing it already in a whole host of other animal issues. The changes happening at Sea World and in the Ringling Brothers Circus are absolutely tremendous. The issues concerning farmed animals, because of their size and their interconnectedness with so many aspects of our society, are just a particularly difficult problem to solve.

ACE recently recognized the Nonhuman Rights Project, who are trying to obtain legal rights and personhood for chimpanzees, as a Standout Charity, mainly because of the impact that a precedent of achieving rights for animals would have. What are your thoughts on the pursuit of rights for nonhuman animals? Do you think that this is a viable pursuit? Do you think that the potential benefits are worth spending more time in this area?

Yes, I do think that this sort of pursuit is worthwhile. However, I’d like to point out that “legal rights for animals” is a very broad topic, and can mean many things. There are many ways to protect animals legally that are less flashy and attention-grabbing than Steven’s, but that can be just as effective at protecting animals. Steven is smart to focus on great apes in his efforts, because they are more appealing to the average person, but I think that focusing on farm animal protection is also an important, if less mainstream, approach.

The Nonhuman Rights project has been very successful already, in that their initiatives have gotten a huge amount of coverage. Their story just grabs people, and they have gotten a lot of media coverage and raised a lot of important questions. I have been asked to do more radio interviews about these cases than about anything else. I am less optimistic than Steve that these cases will eventually be ruled in his favor, but I want to make it clear that I do not see that as a great deficiency in his work. He has found a way to focus on different animals in interesting ways, and present stories in a way that the public is very interested in. This, to me, is what makes initiatives such as Steven’s worthwhile.

Do you think that it will ever be possible to prevent all cruelty without animals having some sort of legal standing or personhood?

Great question. It’s difficult to say what exactly that would look like for animals. To my mind, in order to have adequate protection, we would need to create a legal advocate for animals, in the same way that we have them for children. If such an advocate truly was independent and effective, then perhaps this would effectively create some sort of legal standing. We would maybe also have to create a new type of governmental agency that we could trust to enforce anti-cruelty laws, and we would need to have new laws where individuals could challenge agency and enforcement actions. As long as this system was effective in preventing harm to animals, I don’t think it matters much whether or not this is considered legal personhood.

I think it’s worth pointing out that I don’t believe that we can create a system that can effectively reduce cruelty to a worthwhile extent while still producing the amount of animal products that we produce in our society today. There are too many animals, too many abuses, and there’s no way the system can work on that scale. To envision a law that effectively grants animals legal standing, we need to envision greatly reducing meat production.

The human rights commission in Ontario, Canada just ruled that ethical veganism is a human right that should be legally protected from discrimination. For example, employers will have to ensure that the corporate culture does not exclude vegans. Do you think that a similar ruling is possible or even imminent in the United States?

That sounds like a terrific approach. I think there already is some case law on this topic, and that it is possible that veganism will ultimately be respected as a personal ethical belief deserving of accommodation. Our society already accommodates religious views in a similar manner, and it seems appropriate that our society should respect people’s choices in terms of diet. I used to joke about starting a “church of animal protectionism,” so that society would have to respect our ethical beliefs.

Do you have any concerns that campaigns for welfare improvements might cause complacency in the consumption of animals, so long that they are raised in a “humane” environment?

I have seen no evidence that suggests that welfare improvements are convincing people to continue eating meat, and that campaigning for improvements will cause complacency. I don’t think it’s fair to criticize animal welfare approaches as being downright harmful to animals. I don’t think enough time has passed for anyone to know exactly what the impact of welfare improvements will be, however we have seen a decline in the numbers of animals being killed in recent years. I think that diversifying our approach is the most effective way forward, because different types of campaigns reach different people. No approach is perfect: promoting veganism, while it’s successful in some ways, has the drawback of a very high recidivism rate. It’s important that we work towards animal protection through multiple channels.

Many aspects of industrial agriculture are truly scandalous and simply wrong by any person’s standards, from popular topic items like pink slime, to hormones and antibiotics, to government subsidies, to hiding the true cost of meat when considering the environmental effects, to the treatment of animals and of farm workers. Why aren’t more lawsuits brought up by activists or even opportunistic lawyers? Even if the above practices are technically legal, shouldn’t there be many angles to turn them into devastating lawsuits? It seems surprising that there is not more being done in that area.

Yes, you might wonder why people aren’t suing the USDA left and right for failing to uphold the law. The fact is that it is very difficult to do that, and people have looked into it many times. I look forward to the next five years, when twenty young brilliant lawyers come along and succeed and prove us all wrong.

Lawsuits cost a lot of time and money to put together. There are two situations in which they generally come about: either a nonprofit with limited resources puts together a case, or a large class action law firm looking for a certain amount of remuneration takes it on. Either way, these cases don’t get taken on unless there’s a very strong legal argument, so it’s not very common to see them, despite the overwhelming evidence that there is a lot wrong with the system.

However, I think we are beginning to see some creative lawsuits around animal protection. For example, there have been lawsuits filed by class action law firms around the misrepresentation of the conditions of animals in marine parks: people go there under the false pretense that the animals are treated well, and when they find out that they are not, they are surprised. Similarly, there were a whole host of class action lawsuits that came out of price fixing in the agriculture industry. This is huge progress, as even five years ago, no one would have envisioned that class action lawsuits could be used in this way.

We have seen some other types of lawsuits taken on in animal protection contexts. For example, my law firm represented HSUS on a false claims lawsuit, where, after a big meat recall in California, a stockyard named Hallmark was sued for lying to the government when it claimed that the meat it was selling, which ultimately ended up in the school lunch program, was produced and sold in conformance to the law, when in fact it was not. In fact, it turned out that they had been treating animals horribly and violating lots of laws. The ruling ultimately went in favor of the animals, and there was a very large judgment—$150 million I believe—against the stockyard. They were unable to pay it, but some of the attorney costs were recovered, and it sent an important message to the industry. This was the first time that the False Claims Act had been used in an animal protection context. We are seeing more and more of these types of lawsuits every day, so I am optimistic that progress will continue to be made.

What areas of animal advocacy do you see as having the most potential to help animals over the next five years?

I think the areas that are currently being mined are those that have the greatest potential.

Firstly, I think the ballot initiatives prohibiting cruel practices and the sale of products made with these practices, moving along state-by-state, are a great approach. The federal government is just not ready for anything on this level, but the facts have shown that when we have enough momentum at the state level, the industry changes its practices. There is currently a lot of focus on the ballot initiatives that have had success in California and hopefully soon in Massachusetts, and this will prove very useful in pushing the industry in the right direction.

Secondly, corporate campaigns have had a lot of success in making it clear that consumers are taking animal rights and environmental issues seriously. We are beginning to see a culture of transparency, where corporations are being asked what their animal welfare and environmental policies are, and being held accountable for them. These have had a huge impact, and will continue to do so.

In addition, the focus on veganism as a healthy, positive lifestyle has had a great effect. I live in New York City, and every other week a new vegan restaurant opens and becomes the hottest place in the neighbourhood. Major companies are starting create vegan products to sell in supermarkets, such as Ben and Jerry’s new vegan ice cream.

While people can always find things to criticize, to my mind, the animal protection movement is already concentrating on the most important areas, and will continue to have great success. I don’t go to sleep worrying about whether the movement is missing important things, I just go to sleep worrying about how long change will take to happen, and how painful of a process it will be. But, I think the actions that the movement is taking are the correct ones.

What approaches do you think will be successful in the long term?

I think that the connection between climate change and factory farming will ultimately have a big impact on the production of meat. For example, the head of the United Nations Environment Programme has said that she does not eat meat for this reason. This approach to combatting animal agriculture does have some limitations though, because there could always be another way around it—maybe someone will breed a cow that doesn’t belch methane, or figure out how to build a plant that turns it into energy.

The other big area that will have a big impact is meat replacement. Carriage horses didn’t stop being used because people were against it, they were replaced by the car. This is how many predict that it will go for animals. Now even Hellmann’s, after failing to alter Hampton Creek, has made an eggless mayonnaise. If that’s not a sign of the times, I don’t know what is! I think that ultimately, this is going to be the way forward. I am much more optimistic about this as a realistic approach, than about the idea that governments are going to play a large role in protecting animals.

As I said before, I think social education, corporate campaigns, and venture capitalists creating meat alternatives will be the way forward, rather than a classic legal approach.