Legal advocacy for suffering farm animals: what you can do to help

 In “Animal Rights: Current Debates and New Directions,” edited by University of Chicago Law School professors Cass Sunstein and Martha Nussbaum, Sunstein writes that “through their daily behavior, peo- ple who love [their] pets, and greatly care about their welfare, help ensure short and painful lives for billions of animals who cannot easily be distin- guished from dogs and cats.”

Sunstein is talking about farm animals—who represent more than 98 percent of all animals used for human purposes in the United States in a given year.

You read that right: All the animals in research labs, all the animals shot by hunters, all the animals in circuses and zoos and aquariums, all the pets, and so on—make up about two percent of the animals we inter- act with each year. Farm animals represent the remaining 98 percent. Statistically , as Milbank attorney David Wolfson and Columbia Law adjunct Mariann Sullivan note in the book’s chapter on farm animals, all animals used in the U.S. are farm animals.

So even as our nation showers more than $50 billion worth of love onto our dogs and cats annually , Americans pay much more to the meat industry to run factory farms and slaughterhouses and to package, transport and distribute other ani- mals’ bodies to us for consumption.

Sadly, where animal protection laws are concerned, the system is broken. First, farm animals are exempted from the Animal Welfare Act, which means that 98 percent of animals are exempted from the primary federal law intended to protect animals.

Second, chickens and turkeys are not protected by the one federal law that offers any protection at all to farm animals—the Humane Slaughter Act. And this despite the fact that 98.5 percent of slaughtered land animals are  chickens and turkeys (last year, Americans ate about 9 billion chickens, 300 million turkeys, 100 million pigs, and 40 mil- lion cattle). So using the reasoning of Wolfson and Sullivan, statistically all farm animals are birds—who have no effective federal protections.

What this all means is that facto- ry farm conditions are essentially unregulated when it comes to animal welfare, and that slaughter conditions for 98.5 percent of farm animals offer no legal welfare protections whatsoever. So here’s what’s perfect- ly legal: hundreds of millions of hens crammed into tiny cages where not one hen could spread one wing—for their entire lives. Their muscles and bones waste away , their feathers and skin become raw from rubbing on their wire cages, and they go insane from stress and boredom. That is life for a hen in this country .

As another example, the upper bodies of chickens raised for their meat now grow more than six times as quickly as they did fifty years ago, so that according to the USDA, chicken today has more than ten times as much fat as it used to (and three times as much fat as protein). According to the University of Arkansas, “If you grew as fast as a chicken, you’d weigh 349 pounds at age 2.” The stress on the animals’ bones, joints, and organs is debilitat- ing. Conditions are so bad in modern chicken sheds — which look like car- pets of live but unmoving chickens —that the death losses are one per- cent per week.

At slaughter, chickens are dumped from crates, snapped into metal shackles, electrocuted into immobilization, and then their throats are slit—all while they are still conscious. While slaughter is still painful for pigs and cattle, at least there’s a law for undercover investigators to point to when they find egregiously abusive treatment. With birds, anything goes.

It’s worth noting, as Prof. Sunstein did in his book’s introduc- tion, that farm animals “cannot easi- ly be distinguished from dogs and cats.” In fact, there is no rational jus- tification for the differences in legal protection. Chickens and pigs are more behaviorally and cognitively advanced than dogs or cats. As just one example, as reported by Discovery magazine, “Chickens do not just live in the present but can anticipate the future and demon- strate self-control…something previ- ously attributed only to humans and other primates…” Read more at SomeoneProject.org.

Despite all this, Americans want farm animals to be protected. When the American Farm Bureau Federation commissioned Oklahoma State University to study the matter, the results were clear: 95 percent of Americans—virtually everyone— think farm animals should be pro- tected from abuse. So the legal and regulatory system for farm animals is completely broken, in violation of the clear will of the American public.

The genesis of the broken system is the stuff of books (e.g., Eric Schlosser’s Fast Food Nation and Jonathan Safran Foer’s Eating Animals), but the choice for individ- uals who care about animals is clear: bypass the broken system by not supporting it.

One way to start bypassing the broken system and more closely align what we all want for farm animals with what’s on our plate is by embracing Meatless Mondays—an effort originally formed during WWI by the U.S. government as a resource-saving measure, and later revived by the Johns Hopkins Bloomberg School of Public Health. Try it as a starting point—go meat- less on Mondays, then try to add Wednesdays, then Fridays. And so on.

Another way to start down this path is by eliminating birds and fish from your diet. The average American will consume less than one cow or pig in a year of meat-eating, but dozens of birds and even more fish. If you stop eating birds and fish, that will be a significant positive step. As you do this, I’ll bet you’ll quickly realize that going totally meat-free is not as intimidating as it might seem right now.

Bruce Friedrich, a 2E,is senior director for strategic initiatives at Farm Sanctuary(www.FarmSanctuary.org).

 

Clean sweep changes game on marriage equality

On Tuesday, Nov. 4, 2008, I was standing in a bar in San Jose, California watching the election results with other LGBT advocates. America was about to make histo- ry—voters would choose for the first time a non-white person to be her leader. Between the two candidates, Mr. Obama was significantly better on LGBT issues, and so for those of us who placed an extremely high importance on those issues when deciding for whom to vote, the choice was rather easy . His victory came with a sigh of relief for LGBT Americans who felt ignored by the George W. Bush administration and resented being used as a wedge issue to anger the electorate into voting.

However, the victory was bitter- sweet. That same day, the people of California passed Proposition 8, which amended the state’s constitution to revoke marriage equality, which the Supreme Court of California had earlier found their constitution required. The rights of a community were put to a public referendum and failed. The proponents of Proposition 8 were elated because democracy was on their side.

LGBT advocates knew that between the three avenues of change available to them—public vote, legislative acts, or judicial action—the courts were the best option. To close off the progress being made in that area, the constitutional trump card was being played at every opportunity. Over half the states in the Union now have constitutional amendments banning marriage equality. Watching the results of Proposition 8 come into focus was an hour-long punch to the gut.

Four years later, the picture of LGBT rights in America looks to have changed completely. Like many elections before it, the slate of issues up to a vote last Tuesday included marriage equality , but with one big difference: marriage equality won in every instance—a clean sweep. Voters in Washington and Maryland approved the laws passed by their legislatures that granted marriage equality. Maine voters approved marriage equality without legislative action, a stark reversal from a previous vote in 2009 that had repealed a marriage equality law before it went into effect. Most notably, however, Minnesotans rejected an amendment to their constitution that would have banned marriage equality; it was the first time such a constitutional amendment failed to pass.

The pollsters have been telling us for a while now that public opinion on marriage was slowly changing in favor of equality. The LGBT community was asked to be patient, but the wave of constitutional amendments was still alarming. Even if public opinion changed in our favor, would Americans care enough to repeal the amendments already passed? People might say in a poll they were in favor of equality, but not care in practice. The question remained if opinion was going to change into a more proactive sentiment like “give them marriage equality” or something closer to a neutral sentiment of “we just don’t care anymore either way.” The clean sweep is important because it suggests that public opinion is changing into proactive sup- port for equality .

The impact of the results may even be felt at the top of our legal system. Since that fateful day in 2008, California’s Proposition 8 has been embroiled in legal battles, and on November 20th, the U.S. Supreme Court will deliberate on whether to hear the case, with an announcement of its decision by the 26th. The Court will also consider whether certiorari should be granted to cases challenging provisions of the Defense of Marriage Act. Many feel that the Supreme Court acts with an eye to preserving the perception of its own legitimacy , and thus think it might be unlikely to hear the challenge to Proposition 8 because it is a deeply divisive political issue. In fact, many think the Ninth Circuit opinion was written deliberately in a way so that the Supreme Court is more inclined to deny certiorari, thus preserving marriage equality in California. Election Day demonstrated that pub- lic opinion is changing on this issue, and changing with lightning speed. At the very least, it shows the Court that it needn’t be afraid of speaking on the issue because the issue isn’t as divisive as it used to be—plenty of Americans are in support of marriage equality. In the best interpretation, it shows the Court that it would damage its legitimacy by not hearing the case because it’s worthless to find a protected right only after everyone has been granted it democratically; the court would have failed its job as the guardian of minorities.

As for what this means for LGBT advocacy , it’s frankly one of the greatest developments in recent memory for two reasons. First, it unsurprisingly makes advocacy easier. The path to equality through the courts was criticized as illegitimate judicial activism because there was no democratic action, and where there was, it was in opposition to equality. The LGBT response was that the issue was about rights, which is a topic the public doesn’t get to vote on. A right is something enforced against the majority—a sanctuary upon which the majority cannot tread, and so it would defeat the purpose of a right if they were up to public referenda. The argument is valid, but as a practical matter, people don’t like being coerced and the fight is harder when what you’re asking for is going to result in a lot of coercion.

Lastly, the change in public opinion means opponents of marriage equality have to take their licks; if a public vote is the source of legitimacy on this issue, then it looks like they have to concede defeat and give up the fight because they’ve been backed into a corner by their own reasoning. Call me crazy, but some- thing tells me that’s not going to happen.

Georgetown Law alumni elected to Congress

Photo courtesy of Wikimedia CommonsLast week’s election not only saw President Obama win re-election but also the addition of four Georgetown Law alumni to the 113th Congress, bringing the number of Georgetown Law alumni serving in congress to a total of thirteen. The election of these Georgetown Law alumni emphasizes the strong and continuing tradition of public service undertaken by many of the Law Center’s graduates, affirming the law center’s motto: “Law is but the means, justice is the end.”

“We are proud of and grateful to the many distinguished alumni who have committed themselves to lives of service, following our Jesuit tradition of being women and men for others” said Georgetown President John J. DeGioia. “We congratulate them on their success and wish them all the best in their future endeavors.”

It seems the unique position of the Law Center in the middle of American political life is considered one of the main factors compelling students to pursue a political career. “Lots of people who come to Georgetown without that [interest in politics] sort of get smitten by the political bug because they’re here” stated Vice President for Federal Relations Scott Fleming.

Mazie Hirono, a graduate of ‘78 was elected to the Senate. During her time at the Law Center she was a standout student who focused primarily on public interest law and was a member of Phi Beta Kappa. She will now join Mark Kirk 92’, Patrick Leahy 64’ and majority whip Dick Durbin 69’ as senators with a degree from the Law Center.

John Delaney, L’88 (D-Md.), Lois Frankel, L’73 (D-Fla.) and Ann McLane Kuster, L’84 (D-N.H.) have been elected to the House of Representatives. “It was at Georgetown Law where I developed a sense of what I wanted to do with my career and started to put together a plan for becoming an entrepreneur. I started my first company with friends I’d made at Georgetown” stated Delaney, who is also a board member of Georgetown University, where he met his wife, April McClain Delaney.

Lois Frankel, who won Florida’s 22nd district, was a strong advocate of feminist issues during her time at the Law Center as she challenged the male dominated Law Center to make accommodations for its women students. Law Center Alumni who were reelected to the House of Representatives include David Cicilline, L’86 (D-R.I.); John Dingell, C’49, L’52 (D-Mich.); Peter Visclosky, LL.M.’82 (D-Ind.); Chris Van Hollen, L’90 (D-Md.); Frank Wolf, L’65 (R-Va.) and Minority Whip Steny Hoyer, L’66 (D-Md.).

H Street Northfeast: A little taste of Ethiopia

Photo courtesy of Mark Doss, 3L

by Mark Doss, 3L

About four blocks down the H Street NE corridor, you’ll find another Ethiopian eatery, Sidamo Coffee & Tea. Sidamo is presumably named after the province in Ethiopia known for its coffee plantations. Unlike Ethiopic, it specializes in Ethiopian coffees but does not serve Ethiopian food. I went there for lunch with my friend Sara. The coffee shop is not too large but we had no trouble grabbing a table and ordering food.

To read more, check out Mark’s blog, H Street Northfeast, at http://hstreetnorthfeast.blogspot.com.

YoungLives provides support to teen mothers

Photo courtesy of YoungLives

by Jessica T. Ornsby, 2L

Georgetown alums are making a difference in the D.C. community at large, as well as within the political and legal arena. Georgetown Law alum Toya Carmichael serves as the DC coordinator for YoungLives, a non-profit Christian organization that provides parenting and mentoring services to teen moms in the D.C. community.

YoungLives seeks to empower and equip pregnant and teen mothers to help them achieve specialized training in life skills and parenting techniques. YoungLives provides a compassionate and enriching safe haven for teen mothers in need of a kind word, support, and guidance. The Organization serves teen mothers in D.C., Virginia and Prince George’s County, Md.

While teen moms are welcome at any Young Life activity, YoungLives is specifically tailored for them. Once a month, YoungLives club provides a place for teen moms to come together to have fun, build friendships and hear a message on life and Christian values. Food, activities, music and childcare are a part of every club meeting.

Ericka Aiken, Georgetown’s Black Law Student Association Community Service Chair selected YoungLives as one of BLSA’s many community service projects for the 2012-2013 school year. Twice a month, Georgetown volunteers provide child care services, mentoring, and emotional support for YoungLives participants. One volunteer noted that volunteering with YoungLives serves as a reminder that communities surrounding the Georgetown campus are in need of services beyond legal aid.

Another volunteer, David Carlisle, commented that his volunteer experience gives him the opportunity to “make a small difference that other people have made for [him].”

“The overall success of young black females is a portion of that dream. When I heard that only one-third of teen mothers graduate high school, and only slightly over one percent of those mothers earn a college degree before age 30, I knew something had to be done,” stated Aiken.

Young Lives presents a unique opportunity to potentially make a significant impact in the lives of young women in communities surrounding Georgetown. For more information about Young Lives and to learn how you can become a volunteer, contact Ericka Aiken at dsa24@law.georgetown.edu

GULC students celebrate Obama re-election

Photo courtesy of Phillip Chui, LL.M

by Phillip Chui, LL.M

Every four years, this great, dynamic nation elects a new leader; throughout the process came the months of raucous debates; sardonic comments and sententious and pithy remarks. So as Election Day approached, the burning sense of anticipation and excitement was combined with a sense of palpable relief that the inflammatory ads and negative publicity from both sides would finally come to an end.

The day started off with news of voting errors and long lines; not exactly the most auspicious sign. As the day grumbled on it seemed that in light of the razor thin margin that the polls reflected and the myriad of problems in vote reporting in numerous states that the election would degenerate into a series of recounts and ugly legal challenges.

As people walked into the election party at Georgetown University held by the Georgetown Democrats, the projections and results for the Presidential election from different States were filtering in. Suddenly, the whole room lit up, and there was a carnival atmosphere. The whole process was akin to a reality TV show; there were moments of exhilaration, and of exasperation; moments of suspense, moments of palpable relief. As the results came in on CNN, there were rowdy and jovial cheers whenever the network projected an Obama win; whereas for projections for Mitt Romney, the reaction was far more subdued, and often brutal.

At around 11:15 pm EST, CNN called the election for President Obama. The whole room exploded into a fit of unbridled joy; people were hugging, kissing, cheering. No matter who you supported in this election, one couldn’t help but feel overwhelmed by the incredible scene.

After the tumultuous excitement and exhilaration following the announcement of the victory had somewhat subsided the question became where to take it next.

People then rushed to the White House to savor this incredible moment, and on arrival 1600 Pennsylvania Ave was turned into a huge festival. The crowd erupted into fits of “FOUR MORE YEARS, FOUR MORE YEARS”; a moment reminiscent of the May 2nd, 2011, the day when Osama bin Laden was killed, and when Americans rushed to this same spot to commemorate his death. Except this time it was a celebration of the nation’s unlimited future, and of its strong, vibrant democracy. The chants of “FOUR MORE YEARS, FOUR MORE YEARS” and “OBAMA, OBAMA” throughout the night and into the early morning.

Law Center Graduate wins prestigious award

Derek A. Webb, who completed his JD at the Law Center has won the Inns of Court’s prestigious 2012 Warren E. Burger Prize. 

Webb received the Warren E. Burger Prize due to his essay “The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention.” The paper dicusses the convention as a potential new model for constructive dialogue using as a basis for argument the story of civic friendship among the delegates at the convention.

Derek’s was alos on the winning side of the 2012 William B. Spong, Jr. Invitational Moot Court Tournament, the longest-running constitutional law-themed moot court competition in the country and during which he also earned the “Best Brief Award for the Respondent’s Side” in the competition.

 

Amgen v. Connecticut Retirement Plans and Trust Funds: Court rules on the extent materiality must be proved at the class certification state of a securities litigation.

This case arises from a suit brought by Connecticut Retirement Plans and Trust Funds against Amgen Inc., a pharmaceutical company that manufactures a number of drugs used to treat anemia. Connecticut Retirement alleged in its complaint that Amgen misrepresented and downplayed rising concerns over potentially harmful side effects of these drugs, including the potential that they caused cancerous tumors in a small percentage of patients, which thereby inflated Amgen’s stock price, in violation of Section 10(b) of the Securities and Exchange Act.

Connecticut Retirement sought class certification on behalf of all stock purchasers between the date of the alleged misstatements and the curative declarations. In order to obtain class certification under Rule 26(b)(3), plaintiffs must show that “the questions of law or fact common to class members predominate.”

In the context of a securities fraud claim under Section 10(b), a private plaintiff must show that the defendant intentionally or knowingly made materially false statements in connection with the sale of a securities, and that the plaintiff reasonably relied on those misstatements in purchasing stock and was harmed as a result.

Because of the unique difficulties that would arise in the context of 10(b) class actions was the class required to show that each of the members individually relied on the alleged misrepresentations, plaintiffs are permitted to rely on the fraud-on-the-market presumption.

This presumption is based on the efficient market hypothesis: that the publicly traded price of a stock reflects all public information regarding that stock, as any positive or negative information not incorporated into the price would cause some to trade above or below the current price, thereby correcting for the new information. The presumption is rebuttable by showing that the market was actually aware of the falsehood of the statement, or that the market price was unaffected by the fraud or misrepresentation.

The district court did not require the plaintiff to prove proof on the market in the certification stage, instead holding that plaintiffs could merely allege that Amgen’s falsehoods were material. The court held that proving materiality and rebutting the fraud on the market presumption were matters to be proven at trial, and so did not allow Amgen to attempt to rebut the presumption at the class certification phase.

On interlocutory appeal to the Ninth Circuit, Amgen argued that the plaintiff should be required to prove materiality at the class certification stage because if it cannot do so the fraud on the market presumption is inapplicable, and thus the plaintiffs would be forced to prove reliance individually, thereby making class certification unwieldy.

The circuit court disagreed, holding that, because materiality is a merits question, which would defeat the claim if disproved but of which there is little question of whether the issues involved are substantially similar among most class members, it was properly withheld until trial. Turning to whether Amgen should have been permitted to attempt to disprove the fraud on the market presumption, the court also held that because these questions would generally be substantially similar amongst all class members, the question could be reserved for trial.

At oral arguments last week, on behalf of Amgen, Seth Waxman argued that requiring the plaintiff to prove materiality and permitting the defendant to rebut the fraud on the market presumption were necessary in order to ensure that the issues at trial were truly common amongst the class.

He argued that this would not be a requirement to prove the merits of the case at the class certification stage because “the inability to prove to a certifying judge [] class-wide reliance … doesn’t preclude a plaintiff like Connecticut Retirement … from coming to court and saying either, “I directly relied on this statement and here’s my proof that it’s material to the trier-of-fact,” because the decision that the judge makes at certification is not binding on the trier-of-fact[.]”

Justice Kagan challenged that interpretation of the class certification requirements: “that’s just to say that a plaintiff can always relitigate the question of materiality. But at the class certification stage, isn’t it correct that if the Court holds that a statement is immaterial, it’s immaterial for all members of the class, and the suit has to be dismissed?”

In response, Waxman argued that, while the trial court may refuse to certify the class, they may still find that the issue is sufficiently disputed to deny a summary judgment motion as to the actual named plaintiff, and allow the case to go to trial.

“I guess the question,” responded Justice Kagan, “is if it is not immaterial as a matter of law at the summary judgment stage, how could a judge possibly say it is material at the class certification stage?”

“The judge at the class certification stage is required to weigh competing evidence, replied Waxman. “At the summary judgment stage, a judge is precluded from doing that.”

“So the class certification stage becomes kind of a super merits inquiry?,” asked Justice Kagan.

“Because materiality always generates a common answer for all class members,” began David Frederick, on behalf of the respondent, “it is the quintessential common issue that does not splinter the class or cause it to be noncohesive for purposes of understanding predominance.”

Justice Kennedy challenged this assumption: “there might be instances in which there is subjective reliance, which we inquire into, that is objectively reasonable, but that does not involve a fraud on the market[.]”

“Only in a hypothetical case,” responded Frederick. He argued that the fraud on the market theory was the only theory being relied on by Connecticut Retirement, and that this was demonstrated by the fact that the district court held that they satisfied the typicality requirement of Rule 26(a), which would not have been the case if Connecticut Retirement was advancing a direct reliance theory.

Justice Scalia responded that this might not be the circumstance in any number of cases in which the efficiency of the market as a means of incorporating all public information, which must be proved a the certification stage, was challenged, and that immateriality likewise demonstrates that the market price did not reflect the false statements.

“They all lose on the merits if there is no materiality,” replied Frederick. “The question about efficiency, Justice Scalia, and the reason why it is advanced at class certification is because it serves a gatekeeping role in determining whether all the investors can show indirect reliance on the market.”