| September 2005: David J. Wolfson |
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David J. Wolfson is a partner in the global corporate department at Milbank, Tweed, Hadley & McCloy LLP and has represented a number of domestic and international companies in connection with a variety of business matters, including mergers and acquisitions, private equity and venture capital investments, joint venture and corporate restructurings, including bankruptcy-related restructurings. While he worked briefly for the Animal Legal Defense Fund in 1996, all of the animal protection representation he has performed has been pro bono. In this capacity, he has represented a number of animal protection organizations including Farm Sanctuary, HSUS, ALDF, and The Fund For Animals. He practices in a number of different areas, e.g., anti-cruelty prosecutions, the drafting of legislation, administrative challenges, appellate court challenges, not-for-profit law and ballot initiatives. He helped draft, and worked on the campaign for, the constitutional amendment to ban the gestation crate in Florida. He has taught animal law at Harvard Law School, Yale Law School, and Cardozo Law School and will be teaching animal law at NYU and Columbia over the next year. He has written on a number of animal legal issues and recently co-authored a chapter in "Animal Rights" (Oxford University Press) edited by Cass Sunstein and Martha Nussbaum. He has been a national adviser to the Animal Law Journal at Lewis and Clark Law School since 1999, and is a director of the National Center for Animal Law and a member of the animal law committees of the State Bar of New York and the Association of the Bar of the City of New York. He is also one of the founding members of the "Mayor's Alliance" a coalition of companion animal rescue groups in NYC that recently obtained a $15 million Maddie's Fund grant to reduce companion animal overpopulation in NYC. He is a graduate of Duke University and Columbia Law School, although he grew up in the United Kingdom. Our Interview with David J. Wolfson How did you become involved in the animal protection movement?
For some reason I was always aware of animal issues, even as a child; I think I tried to stop eating meat when I was about 11 years old. My first real introduction to the movement was the "Animals Film" shown on Channel 4 in the UK when I was 16, which had a great impact on me. Then, when I was in college I was involved in the Students for the Ethical Treatment of Animals group, and at law school I started to become more focused on the farmed animal issue and was fortunate to be able to work with Henry Spira and Gene Bauston. So bit by bit, but I was always highly sensitive to the issue of animal abuse. Do you find it challenging to balance your work as a corporate lawyer with your involvement in the animal law movement?
It is challenging but there are many advantages as well. Obviously the financial security is a good thing, as well as the credibility that can be gained by working at a well-known law firm, which many animal protection groups appreciate; and it is fun to involve junior lawyers in projects. In addition, I have found my corporate transactional experience to be very useful in animal protection work. Obviously the hardest thing is juggling different demands, but if you pick the right projects you can work things out. It is probably harder as a partner because there are so many demands at a large law firm. But Milbank has always been incredibly supportive. In the field of animal law, you are perhaps best known for authoring the book Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for Food or Food Production. Why did you choose to focus on farm animals as opposed to other areas of animal protection?
The simple reason is the numbers (10 billion (excluding fish) in the US). In the US, farmed animals represent about 98% of all the animals (again, excluding fish) we interact with (including animals in zoos, in research, fur farming, cats, dogs, vivisection, hunting, cosmetic testing, etc). If you care about any issue you have to focus on where the real problem is, and if one constituency represents 98% of the problem it seems logical to make that area the number one priority; especially given how horrific modern intensive farming is. All the other areas of animal abuse are important, but they are actually statistically insignificant. It does not matter how great the laws are if they only cover 2% of any population. I am also fascinated by the way farming exemptions work in the US - the handing over of a criminal law to the agricultural industry. And I have always felt that institutional farmed animal abuse and the current legal system, once highlighted, is actually very hard to defend and, as a result, significant success can ultimately be achieved. Obviously it is hard to change the laws given the power imbalance, but being cruel to animals (when there are alternatives) for food production is not an easy argument to stand behind. In 1999, you wrote an article entitled McLibel (published in Animal Law, 5 Animal L. 21 (1999)). Do you think the McLibel Case impacted on the corporate policy/behaviour of MacDonalds in relation to animals? In your view, was the outcome in that case was a satisfactory one?
I think it had a significant impact in a number of ways. The fact that McDonalds (and other fast food companies) has instituted certain animal welfare changes, however weak, indicates its impact. The industry realised that it was vulnerable. From a legal perspective it was also extremely heartening to have a judge conclude that certain intensive farmed animal practices are cruel, that the US legal regulation of farmed animals was nonsensical and that McDonalds was culpably responsible for farmed animal cruelty. This was especially important given the fact that Dave Morris and Helen Steel had significant disadvantages in the lawsuit. Unfortunately, given the way the UK defamation law works, it was very hard for Steel and Morris to win some arguments that they were probably right on - e.g., health issues, littering and certain animal cruelty issues. While the outcome was good in a number of ways, I have a great deal of concern that the programs implemented by McDonalds and others are merely attempts to deflect attention away from animal welfare, as opposed to a real commitment to reduce animal suffering. You have been appointed to teach animal law at a number of leading American law schools including Harvard Law School, Columbia Law School, Benjamin N. Cardozo Law School and New York University Law School.
What do you think are the main factors that have led US Universities to include animal law in their curriculum? Student interest is the number one reason, followed by the growth of scholarship on the issue. And student interest is a result of the seriousness of the subject matter, as well as the obvious and unjustified inconsistencies in the treatment of animals and the law that "protects" animals. Now that we have casebooks, and prestigious scholars interested in the subject, as well as law journals and some funding (Bob Barker), the courses will keep increasing. What are some of the more difficult questions that have been raised by your students?
In my experience my students are most concerned about practicalities - they agree the system is bad, and they can see many different and creative ways to change the law to make it better. While they may disagree with some theoretical approaches they always agree that significant change is necessary. But they are focused on how to make the necessary changes actually happen; how does an animal protection law get adopted?; how would a judge rule a certain way? - and they are most concerned about how hard it is to cause change in a legal system or the larger culture given the power of the industries that use animals, and the lack of concern by many individuals, as well as the fact the most people eat animals and the "moral schizophrenia" that Gary Francione refers to. A lot of them feel that we may be right but we are unrealistic in believing real and significant change is possible given these obstacle. These are the areas where, in my experience, the hardest questions have been raised. And these questions are not easy to answer. To what extent do you think animals can be protected (e.g. through litigation or legislation) within a system that classifies them as property?
It is always hard to know what exactly we mean when we talk about animals being classified as "property". Theoretically, I think it is reasonable to argue that significant legal protections can exist even if animals still retain certain "property" characteristics, but for this to happen most of the typical characteristics of owning an animal would have to be significantly limited. I agree with Robert Garner and Cass Sunstein that once laws achieve a certain strength the "property" issue becomes less relevant. One can imagine a world where a dog could be traded and owned, but there were also laws that prohibited unnecessary suffering within the real meanings of those words (e.g., the dog cannot be killed unless it is medically necessary, cannot be raced or used for entertainment unless he is properly treated and has a good time, cannot be experimented on, must be provided care (food, exercise, shelter), mutilations are prohibited, custody disputes would factor the interests of the dog, etc). If such a world existed, the dog could still retain certain "property" characteristics (owned by an individual, tradeable at will), but the way the dog was treated, and the limitations on the "owners" treatment of his "property", would be so different that the concept of the dog being "property" would not seem to be as relevant. Clearly it would be a difficult battle to create such a system of laws (although perhaps no harder than the battle to have animals no longer viewed as property; in fact, the battle is probably the same), but I see no reason why, as a matter of theory, the "property" classification (whatever this might mean) could be retained and, at the same time, animals could be appropriately protected. As Sunstein has recently argued, the focus is more on what is prohibited than on whether the animal is property or not; although, as Sunstein also recognises, labelling animals as "property" is highly problematic for a number of reasons and it might be better to move away from the term anyway. Why did you joint the board of directors of the National Center of Animal Law? What role do you believe that Centers like the NCAL have to play in the growth of the animal law movement?
The Center's goal is to train and support those who choose to practice animal law or to study animal law in order to further the field of animal law and promote legal protections for animals. The Center provides programs that simply did not exist before it came along, e.g., funding for students to attend animal law conferences, the national moot court competitions at Harvard, and drafting competitions, as well as complimenting existing resources and funding for students who are interested in becoming animal lawyers. It made sense to be involved in a project that would help provide a foundation for the animal law field. Hopefully the Center will encourage and develop practical training for animal law students recognizing that the present generation of students will become litigators, prosecutors, and judges; executive directors, staff, and board members of non-profit organizations; and lobbyists and legislators creating stronger legal protections for animals. In addition, the Center sits at Lewis and Clark law school which is a top environmental law school and Lewis and Clark has been a tremendous supporter of animal law. Overall, the project just seemed to make sense. I also have a tremendous amount of faith in Laura Ireland Moore who is the head of the Center. Do you have any words of wisdom to share with Australia's budding animal lawyers?
I can really only look to my experiences in the US and share what may or may not be useful given your particular environment. A few of the things that helped the animal law movement in the US were:
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