View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Michigan School of Law University of Michigan Journal of Law Reform Volume 51 2018 Beyond Rights and Welfare: Democracy, Dialogue, and the Animal Welfare Act Jessica Eisen Harvard Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Animal Law Commons, Law and Philosophy Commons, and the Science and Technology Law Commons Recommended Citation Jessica Eisen, Beyond Rights and Welfare: Democracy, Dialogue, and the Animal Welfare Act, 51 U. MICH. J. L. REFORM 469 (2018). Available at: https://repository.law.umich.edu/mjlr/vol51/iss3/2 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. BEYOND RIGHTS AND WELFARE: DEMOCRACY, DIALOGUE, AND THE ANIMAL WELFARE ACT Jessica Eisen* ABSTRACT The primary frameworks through which scholars have conceptualized legal pro- tections for animals—animal “rights” and animal “welfare”—do not account for socio-legal transformation or democratic dialogue as central dynamics of animal law. The animal “rights” approach focuses on the need for limits or boundaries preventing animal use, while the animal “welfare” approach advocates balancing harm to animals against human benefits from animal use. Both approaches rely on abstract accounts of the characteristics animals are thought to share with humans and the legal protections they are owed as a result of those traits. Neither offers sustained attention to the dynamics of legal change in democratic states, including the importance of public access to the facts of animal lives, opportunities for affec- tive storytelling, and multi-faceted public deliberation. This Article offers an alternative avenue for theorizing animal legal protections, drawing on Laurence Tribe’s articulation of law as governed by an “evolving ethic,” wherein successive shifts in legal and public consensus build upon one an- other in ways that are dynamic and not entirely unpredictable. Drawing on feminist, critical, and relational approaches to law and social change, this Article elaborates a vision of animal law as governed by an evolving ethic wherein legal transformation is deeply connected to the public availability of particular facts of animal use, emotional storytelling, and broader social relationships and power dy- namics. The evolving ethic here proposed helps us to shift our focus from a pre- critical understanding of rights as hard boundaries to a view of rights as a product of dynamic social relationships; and to shift our focus from welfarist balancing calculations to more open-textured dialogue. By conceiving of animal law through the lens of the evolving ethic, we can break free of stale debates about the virtue of rights versus welfare and instead embrace both as tools in a dialogic toolbox deployed in a field of legal transformation that is better characterized by dynamism and dialogue than by teleological advancement toward a predefined goal. The Animal Welfare Act (AWA)—the central legal regime governing the experi- mental use of animals in the United States, forms the central case study. The AWA regime in its current form works to foreclose public deliberation over concrete cases. * The author wishes to thank Martha Minow for her support and encouragement, and for her careful reading and feedback throughout the development and revision of this Article. Sincere thanks are also owed to Delcianna Winders for her detailed comments on an earlier draft, for her efforts organizing the Harvard Animal Welfare Act at Fifty conference and workshop, and for so consistently serving as a deeply knowledgeable and thoughtful interlocutor on issues relating to the legal protection of animals in the United States. Thanks also to Saptarishi Bandopadhyay for immensely helpful conversations and insightful feedback during the early stages of this project. Finally, warmest thanks to Marjorie Nichol for her tireless reading of many drafts, and her valuable input on matters of style and argumentation. 469 470 University of Michigan Journal of Law Reform [VOL. 51:3 The history of this same regime, however, demonstrates that affective storytelling grounded in the particular facts of animal use has been a major driver of demo- cratic legal change protecting animals used in experiments. This Article explores the current structure and historical development of the AWA scheme, demonstrating that the evolving ethic offers insights, beyond those allowed by rights and welfare approaches, into the practical dynamics of animal law and the shortcomings of the current AWA scheme. Informed by the evolving ethic and the AWA’s history of socio- legal transformation, this Article offers AWA law reform proposals that aim to facil- itate public deliberation grounded in the concrete facts of animal use—including the introduction of ethical merit review of proposed experiments, changes in the applicable rules of standing, and product labeling. While each proposed reform may yield incremental improvements in the treatment of laboratory animals in the immediate term, the core insight of the evolving ethic is that there is a distinct value in the potential of such proposals to nourish public conversations rooted in particu- lar stories of animal use—conversations that are likely to spur new questions and new conversations, none of which can be fully determined in advance. INTRODUCTION .............................................. 471 I. THE ANIMAL WELFARE ACT REGIME ................... 477 A. Constrained and Confidential Committees ............ 479 B. Limited USDA Enforcement and Transparency ....... 481 C. Obstacles to Private Standing ....................... 485 D. Summary: Public Debate under the AWA ............. 488 II. BEYOND RIGHTS AND WELFARE ........................ 488 A. Welfarism and Humane Treatment .................. 489 B. Animal Rights .................................... 491 C. A Missing Link: Law and Social Change ............ 494 III. FROM RIGHTS AND WELFARE TO AN “EVOLVING ETHIC”............................................... 495 A. Embracing Democracy: Public Values, Legal Change... 496 B. Making Room: New Voices, New Challenges .......... 498 1. From Abstraction and Sameness to Particularity and Power ...................... 499 2. From Hard Logic to Affective Reasoning..... 502 3. Challenges and Possibilities for Particularity and Affective Discourse ...................... 504 4. The AWA History of Affect and Particularity in Legal Change ............................. 507 C. Changing Focus: New Questions, New Conversations . 515 1. From Boundary to Relationship.............. 516 2. From Balancing to Dialogue ................. 526 3. From “Rights vs. Welfare” to a Dialogic Toolbox ..................................... 527 4. From Teleology to Dynamism................ 530 IV. THE EVOLVING ETHIC AND THE AWA ................. 535 SPRING 2018] Beyond Rights and Welfare 471 V. ANSWERING OBJECTIONS .............................. 542 CONCLUSION ................................................ 546 INTRODUCTION As the Animal Welfare Act (AWA)—the primary legal regime governing the experimental use of animals—celebrates its fiftieth anniversary, debates about animal research are in gridlock.1 Public dialogue on animal experimentation exists at a high level of ab- straction, with few conversations taking the form of competing arguments surrounding the same factual context. The ground for public debate over concrete cases—already shaky—seems to be at risk of vanishing with the recent, unexpected removal and selective reposting of animal welfare records from the inspecting agency’s website.2 The resulting public dialogue around animal experimentation lacks adequate foundation in the concrete facts of animal use. Pro- ponents and opponents of animal research certainly call upon “facts” to support their arguments, but the debate rarely takes the form of competing arguments arising from the same underlying case. Instead, advocates of animal research tell stories emphasizing the benefits of animal research, like this moving personal account offered by Robert B. White, beginning with the premature birth of his granddaughter, Lauren: We wept, our hearts torn by the growing realization that Lauren might not live. The next day she died. The best care that medicine could offer was not enough. The research on baby lambs and kittens that has given life to many premature infants such as Lauren was still in the future and would come too late for her. In time, two grandsons, Jonathan and Bryan, were born. Pre- mature babies, they also had to struggle for life. Our pain of uncertainty and of waiting was all to be endured twice again. 1. Bernadette Juarez, The Animal Welfare Act: Celebrating 50 Years of Regulatory Protection, Enforcement, and Education, 41 ADMIN. & REG. L. NEWS 13 (2016); see infra notes 2–8 and ac- companying text (on gridlock in animal experimentation debates); cf. infra note 109 and accompanying text (on related gridlock in the broader rights-welfare debate). 2. See infra notes 50–56 and accompanying text. 472 University of Michigan Journal of Law Reform [VOL. 51:3 But the little boys lived. The knowledge