Get This Rat a Lawyer!

Glenn Beck says Cass Sunstein wants to give animals the right to sue humans. Really?

In 1510, the respected French lawyer Bartholomew Chassenée made his name by serving as legal counsel for a horde of rats. The rats stood accused of eating through the province’s barley crop. But the trial was tainted, Chassenée argued, for two reasons: First, the court failed to properly notify the rodents of the trial date. And second, the defendants could not possibly appear in court when getting there entailed risking a run-in with a cat.

This scene may have taken place in Medieval Europe. But, if you believe Fox News host Glenn Beck, it could happen here too.

Beck has been monitoring the threat for quite some time. “The day may not be far off, animal lawyers say, when animals are not only present in the court room but participating in the proceedings,” Beck warned on his radio program in March 2008. He reiterated his concern last Wednesday on Fox. When he was 8 years old, he said, he loved “Ben,” Michael Jackson’s 1972 tune about a pet rat. “But do you really want a police officer telling Ben, who’s just shown up in your home, ‘Ben, you have a right to remain silent. … If you can’t afford an attorney, Ben, one will be provided for you’? The world is upside down!”

And it’s Cass Sunstein’s fault. A constitutional-law professor at Harvard University, Sunstein was confirmed Thursday as the director of the Office of Information and Regulatory Affairs, or “regulatory czar.” Now, according to Beck, the possibility of being dragged to animal court is even higher.

The foundation for Beck’s vision of a murine judicial system is a paper Sunstein wrote in 2002, in which he argued that individuals as well as the state should be able to file suit for animal cruelty. (Read it here.) Sunstein also gave a lecture on the subject at Harvard in 2007. (Watch it here.)

Sunstein is best known for his scholarship on cost-benefit analysis in public policy as well as his work on behavioral economics—the idea that government can use incentives, or “nudges,” rather than heavy-handed regulation to drive behavior. But his animal rights article, which later became the introduction to a book called Animal Rights: Current Debates and New Directions, has received special attention.

Sunstein is now caught up in Beck’s anti-czar crusade. (Never mind that czar is just a word used by the media for appointed advisers not subject to Senate approval or that, by that definition, Sunstein isn’t a “czar” at all.) The Web site StopSunstein.com catalogs statements by Obama’s “radical anti-hunting, anti-gun, animal rights law professor.” Many attendees at Saturday’s 9/12 protest in Washington echoed Beck’s concerns. “He thinks rats should have the right to an attorney, to sue humans,” said Davy Reeves of Kalamzaoo, Mich. “Rats have no right to live in my house.”

Reeves is right about the second part. The first is a little more complicated. What Sunstein says in his 2002 paper is that state animal-cruelty laws get enforced only when a public prosecutor brings charges. And in practice, that rarely happens. To correct this “enforcement gap,” he says, people should be able to file civil lawsuits to prevent cruelty to animals. “The very idea might seem absurd,” he writes. “But it is simpler and more conventional than it appears.” Just as a child might be represented by an adult human, so too would an animal.

Sunstein also argues that anti-cruelty laws should be applied to animals that suffer because of farming, meat-industry practices, and hunting. “We ought to ban hunting, I suggest, if there isn’t a purpose other than sport and fun,” he says in his 2007 lecture. “That should be against the law. It’s time now.”

Sunstein isn’t saying that animals should be autonomous (and thus able to hire an attorney) or that an animal’s life is as valuable as a human’s. In fact, he rejects these arguments outright. Rather, he says, we should do everything we can to minimize animal suffering. We already have laws that make it illegal to cause distress to animals, he says. We just need to enforce them. Allowing private lawsuits on behalf of animals is one way to do that.

What does that mean for rat infestations? “If rats are able to suffer—and no one really doubts that they are—then their interests are relevant to the question how, and perhaps even whether, they can be expelled from houses,” Sunstein writes. “At the very least, people should kill rats in a way that minimizes suffering. And if possible, people should try to expel rats in a way that does not harm them at all.” 

Sunstein never explicitly says we should have class action suits brought by rats. But it’s easy to see where Beck gets it. “Your dog should have an attorney” is how he summarizes it. “I don’t know about your dog,” Beck says, “but my dog, I don’t think he likes attorneys.”

Sunstein’s defenders make two points. First off, they say, Sunstein is an academic. Academics are supposed to make provocative arguments. “Their job is to be exploring the bounds of the biggest, hardest questions that our country faces,” says Kenneth Baer of the Office of Management and Budget. “That’s what they do for a living. There are no attack ads in academia.”

Second, they say, he’s not actually advocating these policies. It’s just legal analysis. That would make sense—if Sunstein made it clear the views were not his. In his paper, he does at times go out of his way to distance himself from his arguments. Rather than saying, “I reject …,” he’ll say, “This position requires rejection of ….” But other times, he takes a stance. In the last section of his essay, he concludes that “private suits should be permitted to prevent illegal cruelty and neglect.” As for banning hunting or minimizing cruelty in animal food processing, “I believe that steps in this direction would make a great deal of sense.”

Lost in the heat is the fact that animals already have all sorts of rights. You can’t legally beat a dog. You can’t work a horse beyond exhaustion. You can’t make cocks fight for your entertainment. The reason these activities are banned is that they cause suffering. What, then, is the difference between abusing a dog and crushing a rat with your foot (other than size and cuteness)?

Furthermore, animals already have some degree of legal representation. If you kick someone’s dog, for example, they can sue you for damages. “I’m not suing on behalf of their dog,” says California animal rights lawyer Shannon Keith. “I’m suing on behalf of them on behalf of their dog.” Nor do they have to be the animal’s owner in order to sue: They can sue you even if you kick a stray dog. In 2007, private citizens sued the Los Angeles Zoo to keep the zoo from constructing a new exhibit that would separate the two elephants living there. (A judge dismissed the suit, saying the plaintiffs should take it to their local politicians.) People can also file private suits for animal abuse on grounds of emotional distress—they saw the animal suffering, and they in turn suffered. In California, private suits can even be brought based on criminal statutes, according to Keith. From there, it’s a short step to saying I can sue a food company for grinding up baby chicks.

At a certain point, the discussion becomes what it was at the start: academic. Sunstein’s personal views on animal rights and hunting are not going to influence policy. OIRA doesn’t make laws; it coordinates regulation among the different agencies as they apply laws already passed by Congress. Nor are Beck’s concerns shared by most conservatives. White House officials point out that Sunstein was endorsed by conservative stalwarts from the U.S. Chamber of Commerce to C. Boyden Gray to the Wall Street Journal editorial page.

But that doesn’t make Sunstein’s saga any less important politically. His confirmation was held up first by Sen. Saxby Chambliss, then by Sen. John Cornyn, out of concern about his record on hunting. (Sunstein wrote letters to both affirming his commitment to the Second Amendment.) It also shows that even the most respected scholars in their fields—most law students know Sunstein as the co-author of their Constitutional Law textbook—are not immune to attacks. Sunstein is hardly the first appointee to have his academic writings held up to the cable news glare. Health policy adviser Ezekiel Emanuel was accused of advocating euthanasia in a paper on end-of-life decision-making. (His words were twisted, according to FactCheck.org.) “Science czar” John Holdren was criticized for a book he co-wrote in 1977 in which he discussed putting chemicals in drinking water that would sterilize people in order to control population. If you want to work in the White House, the message seems to be, don’t tackle any difficult subjects.

Then again, Emanuel, Holdren, and Sunstein all squeaked through. The Constitution is still intact. The nation remains stable. And, for now at least, you can kill as many rats as you want, however you want, without fear of retribution.