Sherry Colb's Argumentative Style

Today is the Symposium in Honor of Professor Sherry Colb, hosted by Rutgers School of Law in Newark and co-sponsored by the Cornell Law Review. Last week I described and linked the paper I'll present on the panel exploring crosscurrents in Sherry's writing spanning various areas of interest. Since then, one of our speakers had to back out, so I'll also be replacing him on the animal rights panel. Because my crosscurrents paper is already likely to use more pages in the law review than a typical symposium-length article, I didn't think it appropriate to ask the law review to publish my write-up of my remarks on animal rights as well.

Accordingly, I'll use this essay to preview my remarks, which I'm titling Sherry Colb's Argumentative Style. I discuss the patient and gentle tone of Sherry's influential 2013 book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans (hereafter Cheeseburger). As I explain, the style of Cheeseburger may strike people who knew Sherry well as at least somewhat insincere. Sherry was a genuinely compassionate person and a patient teacher in her classes, but she could turn arch or even angry when confronting what she regarded as unfairness or other bad behavior. My task, then, is to reconcile the saintly Sherry of Cheeseburger with the fuller and complex person she was in her life. I argue that in Cheeseburger Sherry sought to model an argumentative style that she thought most effective--not only for other animal advocates but also for herself.

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Cheeseburger consists of a Foreword by Jeffrey Moussaieff Masson, an Introduction in which Sherry lays out what she called "the simple case for veganism," thirteen substantive chapters addressing, as the title says, questions non-vegans commonly ask vegans, and a conclusion that summarizes and draws connections among the various questions in the thirteen chapters.

The conclusion begins: "I have written most of this book with an audience of non-vegans in mind." That's undoubtedly true, but in the decade since Cheeseburger first appeared, it seems to have been at least as useful to vegans as to vegan-curious non-and-not-yet vegans. Perusing reader reviews (e.g., here), one finds praise for the clear and often humorous writing, the careful reasoning, and the illuminating examples. One also notes that a great many of the readers were already vegans before they read the book. They frequently say that they use what they learned in Cheeseburger to respond to the questions they so commonly encounter from their non-vegan friends and relatives.

Cheeseburger does indeed arm vegans with facts and logic to respond to questions like "aren't the animals dead already anyway?" (chapter 6) and "why not just be vegetarian?" (chapter 4). But it does much more than provide stock answers or talking points. Cheeseburger also deploys and thus models a distinctive argumentative style that aims to disarm skeptics of veganism and animal rights. The book is consistently gentle in style, even as it pulls no substantive punches. That style comes across in three ways.

First, the book is funny and self-deprecating. For example, in one passage in chapter 3 ("What About Human Health?"), Sherry confronts the claim that a non-vegan's cravings for meat indicate that people are supposed to eat meat. She writes that if cravings were good evidence of what we ought to eat, she "would start each day with a freshly deep-fried and glazed donut or two, followed by a handful of chocolate hazelnut cups and a cookies-and-cream vegan milkshake." Here and elsewhere, by using a light touch, Cheeseburger keeps readers engaged and also undercuts a stereotype of vegans as humorless killjoys.

Second, Sherry displays and models empathy for non-vegans by repeatedly pointing to her own pre-vegan experience and noting how she respects and admires a great many non-vegans for their non-animal-related good deeds. We might call this a “hate the sin, love the sinner” approach, but the language of sin is more judgmental than the tone of the book. Thus, chapter 5 (which shares the title of the book as a whole, "Mind If I Order the Cheeseburger?") points to structural, rather than only individual, reasons why so many people participate in an unjust food system. There Sherry writes that "[t]he problem of violence against animals . . . arises not because many people are bad. It arises instead out of social traditions and institutions that prevent us from fully appreciating the implications of our actions and of the values that most of us already hold dear."

Third and most fundamentally, Cheeseburger disarms skeptics by taking seriously questions that are often asked in bad faith. Consider chapter 1, which is titled "What About Plants?." Sherry was well aware, of course, that non-vegans who assert that plants also have a right to life are not suggesting that people should not eat anything. Nor are they implying that everyone should be a strict fruitarian who subsists wholly on the parts of plants that can be eaten without killing the entire plant. Rather, they typically mean to imply that there is no moral basis for distinguishing plant foods from animal foods, so one may as well eat animal foods.

Sherry frames her consideration of this objection by respectfully considering a 2009 article in the New York Times with the not very respectful title Sorry, Vegans: Brussels Sprouts Like to Live, Too. She begins by questioning whether brussels sprouts or any other form of plant life "like" anything. Sherry distinguishes between sentient animals and non-sentient plants. The latter are certainly alive, she concedes, but that does not mean that they are sentient--that is, that they have subjective experiences--and it is sentience that grounds a being's moral entitlements; indeed, it is sentience that makes a being a being, a someone, rather than a something.

Sherry next considers the evidence adduced in the article for the proposition that plants may be sentient after all. The article cites scientific studies showing that plants mount complex defenses to predator insects and react swiftly to changes in their environment, thus attributing to them the capacity for "[t]ouch, sight, hearing, [and] speech." Sherry considers the evidence thoughtfully and then offers an appropriately skeptical response, noting how our own immune systems produce a likewise complex and rapid response to micro-organisms. "If plants can mount similarly sophisticated" defenses to attackers, she says, "then there is no more reason to think that plants are therefore conscious than there is to think that our own immune systems' resistance to germs evidences or reflects our own consciousness."

Sherry does not stop there. If it some day turns out that the plants we eat to sustain ourselves are indeed sentient, she says, that will not provide a reason to eat sentient animals instead. Growing and harvesting plants to feed to animals who are then exploited or killed for food results in killing many more plants than does simply eating a much smaller number of plants directly--because most of the caloric content of plants is lost in their conversion to animal food. And while she's at it, Sherry points out that eating animals and their products rather than eating plants also imposes much greater harm to the environment and contributes to human hunger.

Sherry's responses to the "what about plants?" question and the other questions she considers in Cheeseburger are not at all defensive or dismissive. The humor is situational rather than tart. Rather than mock what might strike many vegans (and even quite a few non-vegans) as insubstantial objections, Sherry tries wherever possible to construct and respond to what is sometimes called a "steel man" argument (in contrast to the proverbial straw man). In so doing, she strengthens the power of her own argument but she also invites a softening of attitude on the part of her real and hypothetical critics. Upon seeing their views treated with respect, some such critics may return the favor.

And that indeed happened. Occasionally students who took Sherry's animal rights class complained that it was an effort to proselytize veganism, but more frequently they commented on her openness to engaging respectfully with objections. Some of the students who were most resistant to veganism when the class began eventually became vegan, sometimes years later, attributing their willingness to consider the possibility to Sherry's gentle touch.

Sherry's respectful engagement with those with whom she disagreed was not limited to animal rights. For many years, Sherry carried on a private and respectful correspondence with a prominent anti-abortion lawyer. They disagreed about much more than they agreed about but continued because they each learned so much from the other.

And yet . . .

. . . of course some of this was artifice. Sherry was not a saint. As I noted above, she could be prone to anger and biting sarcasm. She was also very good at reading people's emotions, so she almost always knew when someone was raising questions in bad faith. One might therefore wonder whether the patient, non-judgmental Sherry of Cheeseburger was the “real” Sherry. 

I'm tempted to answer by saying that both the idealized Sherry of Cheeseburger and the real Sherry at her worst moments were real aspects of her personality. Like Whitman and for that matter just about everybody else, she contained multitudes.

I don't want to leave it there, however. Instead, I want to say a few words about Cheeseburger and legal argument. Sherry was very skeptical about the power of the law to advance the interests of animals. To be clear, though, she was not a global skeptic about law or even about litigation. She thought that there were a great many circumstances in which legislation and/or lawsuits could yield progress.

Sherry's skepticism of the law as a tool to promote justice for animals was rooted in the fact that, despite gains by the animal rights movement, the vast majority of people--including lawyers, politicians, and judges--eat animals and their products at every meal and are thus very much invested in seeing that behavior as morally unobjectionable. For the law to move behavior, there would first need to be a critical mass of vegans with the power to make law. Until then, the law, as Sherry saw it, was at best a tool for bringing critical attention to some issue in order to change hearts and minds.

Despite Sherry's skepticism of the law as an instrument of change for animals, she was an excellent lawyer. What makes Cheesburger such effective advocacy is that it doesn’t come across as argumentative. And that, in Sherry's view (and mine), is an essential component of effective advocacy more broadly.

Consider brief writing. Any decent lawyer knows that even before you get to the part of the brief labeled "Argument," you make implicit arguments in your "Statement of Facts" by presenting the facts in a way that leads the reader to see them in a light favorable to your client. Of course, an obviously tendentious statement of facts will backfire, as will a one-sided argument, so a good lawyer must present their case with subtlety and by acknowledging countervailing considerations.

Good lawyering is thus in an important sense Socratic in the sense of the Socrates of the Platonic dialogues. But to illustrate how, I need to distinguish between two very different versions of the Socratic method.

Today, in a post-legal realist world, law professors who deploy the Socratic method frequently do so for the purpose of highlighting the law's under-determinacy and internal contradictions. However, at least according to some accounts (most famously, that of Grant Gilmore in The Death of Contract), when Christopher Columbus Langdell pioneered the method, he did so for the purpose of "brainwashing" (p. 13 of Gilmore) students to come to the "correct" answer. After all, Langdell believed law was a science in which there were almost always determinate right and wrong answers.

Whether or not Gilmore's account of the Langdellian version of the Socratic method is fair to Langdell, it is a fair description of how the Socrates of the Platonic dialogues used it. To be sure, many of the dialogues end without Socrates or his interlocutors having arrived at any firm conclusion about their topic, but like Langdell as portrayed by Gilmore, Socrates most certainly is not trying to encourage his pupils to think for themselves. Rather, he is leading them where he wants them to go.

That method accords with Plato's somewhat peculiar epistemology. In the Meno, Plato, through Socrates, expounds the view that knowledge is simply recall. That is how Socrates, merely through a series of questions to an enslaved boy, enables the boy to "recall" propositions of geometry that he didn't previously realize he knew. This concept is sometimes called anamnesis.

Sherry was an excellent Socratic teacher, but it probably won't surprise anyone to learn that she did not subscribe to Plato's theory of anamnesis--the idea that we learn by merely recalling what our souls knew before we were born. Even so, in Cheeseburger and elsewhere, Sherry deployed a form of Socratic inquiry that has more in common with the version Plato espoused than with the Socratic method as she and other law professors commonly practiced it.

Sherry argued that veganism simply means living by principles that nearly everybody already believes. The point of her advocacy was not, as in the Meno, to induce recall. The point was to induce a behavioral change in accordance with already shared values and beliefs. What are those values and beliefs? Simply that it is wrong to inflict unnecessary harm on animals who can suffer harm.The challenge that Sherry faced and that all animal advocates face is to get people to see that eating animals is both unnecessary for us and harmful to them.

Because human beings are a rationalizing species, there is also a challenge to get people to reason logically when they are invested in acting in ways that are at odds with how they want to act. Thus, motivated reasoners are prone to fallacies. Sherry gave a vivid example in an essay on this blog in 2016:

The way people think about food and animals resembles a false syllogism that appears in the Woody Allen movie Love and Death. In the movie, Woody Allen's character states as follows: "All Men Are Mortal. Socrates Is a Man. Therefore, All Men are Socrates." The analogous syllogism that seems to operate for people discussing the use of animals for food is as follows: "All Humans Need Food. Animal-based Food is Food. Therefore, All Humans Need Animal-based Food."

I hasten to add that Sherry came to regard Woody Allen as an extremely problematic figure, although not in a way that bears on the all-men-are-Socrates fallacy. In any event, if people are utterly resistant to logic in the way that the all-men-are-Socrates fallacy illustrates, then even gentle advocacy of the sort that Cheeseburger modeled will fail. Accordingly, we might think of Cheeseburger as an optimistic text, one that assumes that there is a limit to what motivated reasoning can do to blind people to the truth.

Sherry was not naive. She did not think that logic and argument alone would sway most people to become vegans. That is why, as Professor Sullivan notes in her paper for this panel, Sherry appealed to the students in her animal rights class in other ways as well. Through videos, she judiciously exposed them to a small dose of what happens to animals at slaughterhouses. She took them on a field trip to Farm Sanctuary, where they could bond with happy animals who were spared the fate of the vast majority of their kind. And she baked vegan treats for the students for every class, to demonstrate that the transition she was urging would be pleasant.

Thus, Sherry regarded logical argument as only one tool of effective activism, but she thought it had the power to work in conjunction with other tools to bring about behavioral changes. That optimism was a product of her own experience, because long before Sherry was vegan, she held beliefs that ought to have entailed veganism.

Consider the 1993 Supreme Court case of Church of the Lukumi Baba Lu Aye, Inc. v. Hialeah, in which the Court unanimously invalidated a city ordinance forbidding ritual animal sacrifice on the ground that it was targeted discrimination against practitioners of the Santeria religion. At the time, Sherry was a law clerk for Justice Blackmun. She urged him to permit her to draft a concurrence for him that, in its final published form, stated:

A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals. [That] is not a concern to be treated lightly.

Sherry (and I) did not become a vegan until 2006. Yet we can see that even thirteen years earlier she was an advocate for animals. She needed to persuade herself that just about all exploitation of animals amounted to cruelty to animals.

That process of self-persuasion also may explain the apparent incongruity of the saintly Sherry of Cheeseburger and the white-hot angry Sherry of the writing she produced in the spring and summer of 2022. In Cheeseburger, Sherry modeled a style of gentle advocacy not only for other vegans but also for herself--at least when it came to activism for animals. She understood, however, that in some circumstances righteous anger is a more fitting approach than gentle persuasion. As the panelists on the feminist jurisprudence panel that concludes the symposium will explore, nowhere was that more evident than in the furious critiques she unleashed on Justice Alito and the Justices who joined his Dobbs opinion. Sherry was a compassionate human animal and an excellent lawyer, but she was no sucker.