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The field of “animal law”—legal advocacy to improve the world for animals—is growing in the United States. To those unfamiliar with animal law, this growth may appear to result from a unified movement and, more fundamentally, to reflect a unified mindset that all developments in the field amount to progress for animals. For lawyers in the field, however, there is a very real and surprisingly sharp divide between animal welfare proponents, on the one hand, and animal rights proponents, on the other—a divide that influences legal strategy. This Article proposes that, with the rise of plant- and cell-based alternatives for animal products, the rights-welfare divide in animal law will start to collapse, and lawyering will play an even more central role in protecting animals. We do not, like “New Welfarists,” accept that advancements in animal welfare inevitably advance rights for animals. Rather, we believe that lawyers can, based on recent developments in the marketplace, advance animal rights through a careful selection of both abolition- and welfare-focused legal advocacy. This Article explores a combination of legal theory, economic theory, and doctrinal analysis to propose how lawyers can make the biggest difference for animals during this new age of animal law.

As popularly conceived, environmental conservation is a backward-looking exercise that aims to restore and protect the biodiversity of our parents and grandparents. But this static view of nature is a fiction. Scientists have grown increasingly aware that species are still evolving and, in some cases, doing so rapidly. What’s more, scientists are beginning to be able to make predictions about when and how evolution will occur. This Note argues that such nascent biodiversity is worthy of protection. Furthermore, the text and purpose of the Endangered Species Act require protecting populations likely to evolve in the foreseeable future. Without changing the administrative criteria for implementing the Act, agencies could protect nascent biodiversity under the statutory provisions covering threatened “distinct population segments.” Finally, this Note responds to some possible difficulties with this approach. As scientific understanding of evolution and biodiversity continues to advance, agencies must consider that their statutory mandate is not to recreate the past, but to enrich the future.