Julian Sanchez header image 2

photos by Lara Shipley

United States v. Doe

June 29th, 2009 · 4 Comments

I’ve already written about this at some length, but I see that one of the bogus charges against prospective OIRA director Cass Sunstein is actually holding up his confirmation:

Sen. Saxby Chambliss (R-Ga.) has blocked President Obama’s candidate for regulation czar, Harvard law professor Cass Sunstein, because Sunstein has argued that animals should have the right to sue humans in court. […]

But Chambliss worries that Sunstein’s innovative legal views may someday lead to a farmer having to defend himself in court against a lawsuit filed on behalf of his chickens or pigs.

Chambliss told The Hill that he has blocked Sunstein’s nomination because the law professor “has said that animals ought to have the right to sue folks.”

Once again, this is profoundly bogus. First, while it sounds insane when you frame it as the idea that “animals ought to have the right to sue folks,” what Sunstein has actually proposed is actually a pretty tepid reform. The idea is this: We already have animal cruelty laws in most states, but it falls to the discretion of government prosecutors when to actually pursue them. Sunstein proposes that people concerned about the mistreatment of animals should be able to bring civil suits seeking the enforcement of those existing statutes, with liability for attorney’s fees as a deterrent against frivolous litigation.

Now, this seems reasonable enough to me, but maybe you think it’s a terrible idea. Well, fortunately or unfortunately, it doesn’t matter because the director of OIRA has no power to make this happen. Weirdly The Hill fails to point this out, conveying Chambliss’ “worries” without contradiction, and later describing the position as one with “sweeping authority” over new regulation. That’s true, but misleading: The authority is the largely negative power to block regulation, or to resolve conflicts between agencies with overlapping jurisdiction. Sunstein can’t actually impose regulations of his own—and he certainly wouldn’t have any ability to create new classes of legal standing.

Now, Chambliss has to know all this, so I think we can safely assume that this animal rights stuff is largely pretextual—an excuse for the senator to grandstand a bit, slow things down in the upper chamber, and maybe get a bargaining chip with which to extract some minor concession on another issue. That’s all in the game, I suppose, but I wish the handful of outlets reporting on this would make clear that’s what’s going on.

Tags: Horse Race Politics · Journalism & the Media · Law



4 responses so far ↓

  • 1 Gavin // Jun 29, 2009 at 4:53 pm

    I think you are wrong about this. I am sure PETA will be filing many frivolous lawsuits if such suits are allowed. This could be a significant burden to businesses.
    Secondly, the power to dispute a regulation, is also the power to pass regulations by horse-trading. Sunstein can get regulations he wants by threatening to stifle some other desired regulation.
    Maybe he would not do this but it is not inconceivable.

  • 2 Julian Sanchez // Jun 29, 2009 at 5:05 pm

    If so, liability for attorney’s fees should put them out of business fairly quickly. I very much doubt attempts at horse-trading would go without notice or comment, and in any event, I’m pretty sure establishing private standing for suit is the kind of thing that would require an act of Congress.

  • 3 Kevin // Jul 2, 2009 at 12:25 pm

    “…it doesn’t matter because the director of OIRA has no power to make this happen.”

    I disagree. If Cass Sunstein was a proponent of teaching creationist or flat earth theory in public schools, even without the ability to enact anything with regard to those beliefs, it would be just as troubling. Such eccentricities are not necessarily disqualifying by themselves, but should be given consideration.

  • 4 Julian Sanchez // Jul 2, 2009 at 7:43 pm

    Well, my worry in that case would be: “is this a crazy person?” The narrower legitimate worry in this case—maybe because I think concern for animal welfare isn’t all that crazy—is that maybe he’ll be less diligent about weighing the costs of regulations that impose onerous burdens on factory farms. But my impression is that laws specifying standards for animal treatment are mostly imposed at the state level, so even if you’re worried about the meat industry, the risk seems limited.