Sherry Colb and I didn’t always agree about everything. One of the things I valued most about her friendship was that, partly because of that, she was the perfect person to talk to in order to hone ideas. But, of course, it also mattered immensely that she was always respectful and generous and, of course, extraordinarily intelligent. Admittedly, she was intimidating, and, let’s face it, she did not suffer fools gladly. Though an extraordinarily kind person and never prone to unfairness or academic one-upmanship, she was as sure of herself as most vegan animal rights activists are, and her kindness could be accompanied by a wildly acerbic wit. It was a tough combo, but she managed to pull it off.
One of the things that we tended to disagree about, at least a bit, was the theory of change we brought to our own work on behalf of animals. Since no one has, as yet, developed a clearly effective (or, honestly, even promising) theory of change regarding how we end the horror that is committed by humans against animals, in the billions, constantly, it is a topic that is seeing some substantial attention.
Sherry’s theory of change, as I understand it, involved waking people up to what is happening. On a personal level, it involved using her prodigious skills to write, teach, and inform people about why they should care and why they should act on behalf of animals, or at least stop participating in their exploitation. Vegan advocacy has long been a pillar of the animal protection movement, and if there is one thing that Sherry, I, and most other animal advocates have believed, it is that persuading other people to join us in seeing what is happening to animals, seeing who animals really are, and eschewing products made from their bodies is crucial.
And there was no one better at this than Sherry. From her masterwork, written for a mainstream audience, Mind if I Order the Cheeseburger? And Other Questions People Ask Vegans, to the deeply moving passages in numerous law review articles and other writings, to her extraordinary and very popular course, carefully entitled “Animal Rights” and not “Animal Law,” she was able to articulate the heart, soul, and intellectual basis of a movement that is undervalued on all those fronts by almost everyone.
Given Sherry’s lack of faith in animal law, and her extraordinary and creative expertise in criminal procedure, she is the person with whom I most want to discuss the ramifications of a theory of change that has recently been brought to bear by animal rights activists. However, lacking her counsel, I will try to sort it out in this Article. In Part I, I will briefly discuss some of the major theories of change that have been adopted by activists regarding how to bring about real change in how humans treat animals. In Part II, I will examine one factor, i.e., transparency, that is a crucial aspect of all of them. In Part III, I will discuss a practice known as “open rescue,” which has recently resulted in a number of criminal prosecutions of animal activists, and, finally, in Part IV, I will discuss the applicability of the necessity defense to criminal prosecutions resulting from such rescues. I will conclude by asking whether the risk of prison has become an important tool in a viable theory of change for many law-abiding citizens who are, in my view rightly, deeply horrified by what we do to animals and by wishing, once again, that I could talk this over with Sherry Colb.
To read this Article, please click here: Desperate Times and Desperate Measures: When Is Rescuing Animals “Necessary?”
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