Sunday, February 03, 2008

Why Teach Agricultural Law?

A recent discussion of programming for next years AALS section meeting has got me thinking. Some time ago, Dean Chen offered a call to arms, suggesting that we should consider why agricultural law deserves a place in law schools and the legal academy. I'm tossing about the idea of utilizing this notion to bring together some ag law scholars at the AALS conference next January to talk about what agricultural law is. The program, like Dean Chen's post, would be inspired by some recent work (and some AALS programming) that considers the death of commercial law in academic circles. Indeed, commercial law was once a key subject in ag law (and in my ag law course, it still is). Some may suggest that times have changed. Even if they haven't, however, considering what belongs in the circle of agricultural law may be a worthwhile exercise, especially as law schools reconsider how they should prepare students. The thoughts I offer below are geared more at ag law's place in the curriculum than they are at whether the academy regards or should regard agricultural law as a discipline.

Read the rest of this post . . . .

Let's start with commercial law. Among many other things, I discuss articles 2, 7 and 9 of the UCC in my ag law course because I hope to teach them a bit (more, in the case of students who have had one or two commercial law courses) about how the UCC works, what it does, and how to fight about the language or plan for a client when the language is uncertain. And I can do this all on a set of facts that we've been working with throughout the course. Roughly speaking, we could call that core set of facts "production agriculture." It is that core group of facts (even though there is a high level of diversity within the production sector) that I think gives ag law some of its value in the curriculum.

Broadly speaking, agricultural law takes an industry and looks at how different areas of law affect it, how those laws further (or in some instances, inhibit) the policy goals of those within the industry's political community, and how the law can be used to resolve the conflicts that arise. Most other courses, of course, start with the law and then attempt to demonstrate how the legal regime affects a wider variety of actors. And that is a great way of teaching. But I wonder if it gives students a complete sense of how people experience the law. That is, clients in a particular industry (let's take ag) are generalists in the sense that their legal needs run the gamut from commercial law to environmental regulation. At one time (and maybe to some extent today), the lawyers who represented those clients were also generalists who needed a rounded approach to their legal training that focused on the sector. Thus, ag law grew up as a specialty (relative to other industries in the economy) that required a generalist approach (relative to how other legal disciplines work). That still may be true today, but even if it is not, a student who understands how many areas of law affect a certain group of people, as well as how that group affects the law, has an understanding of the law that is beneficial. For students who go on to be practitioners, they should understand the industry better having used it as a central focus for exploring many legal subjects. For students who go on to be policy makers, they should have an understanding of the industry, its needs, and how developments in one area can affect how well the law works in other areas.

While I think this rounded understanding is important, I do not see it as a replacement for other ways of teaching. That is, it is an additional method for giving the students a deeper understanding of the law. One example I can offer is my agricultural environmental law course. I teach two course in agricultural law. I focus one on the environmental aspects of agriculture and the other on the business/commercial aspects of the industry. When I teach ag environmental law--a course modeled after a course Professor Kershen (who shares this view) has taught for a number of years--I tend to think of the more general environmental law course as a "survey" course, with the concentrated focus of ag environmental law as something a bit more concrete. And while this does overlap with environmental law to some extent in terms of the bodies of law that the student encounters, it does not displace that course at all. I think the same can be said of the subjects I address in agricultural law relative to other courses like corporations, finance, real estate transactions, land use, water law, legislation, etc. Dean Chen has made a similar point with regard to constitutional law.

To justify the roundedness thesis I've offered above, consider for a moment what laws govern agriculture and where they come from. From a source standpoint, laws affecting agriculture come from international levels, the federal government, state governments and local governments (including cities, counties, and numerous special districts). From a content standpoint, the legal field includes trade, competition, social welfare, natural resources and environmental (including water), commercial, finance, real estate transactions, land use, legislation, administrative, and more. As a result, primary legal materials include statutes, regulations, treaties, bilateral and multilateral agreements, case law, and administrative decisions. There is also a wealth of material from other sources that can be considered in a course. Universities (especially land-grant institutions) hold and produce a wealth of information about agriculture spread across virtually all departments.

All of this, of course, makes the subject very difficult. And I think others will come to see this difficulty arise as they try to integrate more work from other disciplines into the classroom and expose students to the jurisdynamic nature of law. For example, I think one could look at some law schools' efforts to modify their teaching approaches as striving for what ag law has always done. Ag law accommodates many of the things those efforts are geared at: Integrating in the law school regulatory and statutory influences, different structures and processes, international and comparative systems and cultures, problem solving, and work from other disciplines. One challenge that I think will confront this approach (especially when interdisciplinary products are brought in to the classroom) is the absence of a unifying item. With ag law, we have that: agriculture. Once that unifier is in place, the world opens up. That makes it difficult to teach, handle, and cram into a casebook. But I think it does some great things, even if commercial law is part of the puzzle.

Given this state of affairs, where is ag law's proper temporal location in the curriculum? I tell students interested in these courses that they could take them either before or after other course that touch upon the same subjects. If they take them before, they could view each of the ag courses as an introduction to the broader-based subjects available in the curriculum. For example, they could get a taste of real estate transactions law by looking at it in agricultural law, and then go on to the broader course that will discuss more principles than I will discuss in ag law. If the students take the ag law course later, then they can see how the law changes when it is applied in the ag sector. We often find special rules or different approaches in the ag law area that nicely illustrate how general the general principles are. For the typical student, of course, ag law will do a little of both. So one could think of ag law as either a capstone sort of course, an introduction to various legal subjects, or a little of both. In any event, it offers students something unique and worthwhile.

An aside: The social saga of farmers on a global level is currently garnering the attention of capitalist-turned-philanthropist, Bill Gates. If agriculture is worthy enough to garner his support, what more need be said about whether it enriches a law school curriculum.

2 Comments:

Blogger Tom said...

Agriculture law is important, but so is any other law that is on the books in a country that purports to be a country that is ruled by law, not men. Unfortunately, the law is being manipulated by the court system to benefit those who have the money. Monsanto and other big companies are all too willing to use litigation and its costs to give them competitive advantage in the market place.

The reason laws are on the books, theoretically, is to provide reason in the marketplace and to provide rules that can be enforced. These rules are meant to protect those who are harmed by the breaking of the law.

Unfortunately the laws are not being enforced as written. Big pockets of corporate agribusiness are opened to politicians who are more than willing to stack the courts with judges who do not interpret the law as written, but as they want to. Some call these "liberal" judges, but many of these judges are no more than political operatives placed in the courts for political purposes. With out the enforcement of the law, there is no law.

There is almost no opportunity for a small agriculture producer with limited resources to litigate the breaking of the law against these entrenched large agribusinesses who buy off politicians and stack government agencies with their supporters. The big agriculture companies like Tyson, Monsanto, Pilgrims Pride, Archer Daniels and others can foot the bill for high dollar law firms with political or judicial ties to get the result the desire. They have the money and the resources, often obtained by breaking the law in the first place. These tactics allow the bigger, less ethical companies to control court decisions and undo the laws that affect their bottom line and their complicity in gaining competitive advantage in the market place by breaking the law.

"Monsanto expects to double gross profit by 2012
WIRE REPORTS
05/06/2008

Monsanto's chief financial officer says the agricultural company is on
track to double its gross profit by 2012.

Terry Crews will speak to investors Wednesday as part of a presentation
at the Bank of America 2008 BASics/Industrials Conference in New York.

The Creve Coeur-based maker of Roundup herbicides and biotech products
said this morning that Crews will discuss how Monsanto's strong operating
cash position gives it the opportunity to extend its competitive lead.

Crews says the company's corn business continues to exceed expectations.
He cites strong share growth in the DeKalb and American Seeds Inc.
brands.

The company says its strong earnings growth has allowed it to increase
its dividend six times since 2001."

No individual farmer can combat these big companies because the laws are being written and enforced by companies like Monsanto with their unlimited resources. Litigation and the interpretation of the laws for the benefit of big agribusiness through judicial decisions has allowed bad policy. An example of this, in Monsanto's case, is their ability to claim rights to their genetic modified crops even to the extent of those genetic modified crops infringing on the value of farmer's crops through trespass via pollen drift. Monsanto has successfully been able to capitalize on this intrusion of their genetics on other crops through enforcement in the courts of Monsanto's right to go into farmers fields when pollen drift has happened and sue the farmers who were harmed. Monsanto has set aside a huge amount of money compared to an individual farmer's assets (10 million dollars) and not even limited by this amount.

See:http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1002&context=fac_artchop

Without protection against genetic drift, all farmers will have to pay Monsanto for their patents and lose value for the genetics they use. Monsanto has the opportunity to control all of the seeds for the production of food and thus able to extract higher prices than their competitors through the selling of the seed. With the invention of genetically modified seeds that result in the end of the genetic offspring, or its control by companies like Monsanto, the trespass by Monsanto and the law have given eventual control of our food supply to one large company that is more than willing to use the courts to continue their monopoly on our food supply.

These strategies of "competition" by big companies breaking the law and not having a judicial system that protects those who are harmed is not just a problem in genetically modified seeds but also in false advertising meant to gain competitive advantage in the market place by other companies who have wielded their power in the judicial nominating process and our regulatory agencies.

Tyson Foods is pointing their finger at the USDA/FDA over advertising their chickens as "antibiotic free" when they contain ionophores, widely known as an antibiotic. Tyson pushed this advertising campaign to sell more chickens than their competitors knowing that consumers are starting to be more concerned about antibiotics in the poultry they feed their families. The damage done by Tyson's unfounded claims are not being redressed by the courts and the competitive advantage of selling more product on the market with false ads only increases their market power and concentration. Courts are not providing any economical means for enforcement of the law and so there is no law for the average farmer. There is no protection against even the most atrocious actions of these companies who seem to have court decisions in their pocket.

Tyson, in the Pickett Decision, was able to use the appellate courts and appellate judges to keep from paying a 1.48 billion dollar judgment against them by a jury. To get this decision, the court had to interpret the Packers and Stockyards Act in a way that made it hard to prove damages. This required the appellate court in the 11th Circuit to actually change the words, via their interpretation, in the Packers and Stockyards Act from "or" to "and" based on a decision from their own circuit that they made.

In other words, the judges, either because of corruption or incompetence, are changing the law to benefit the "robber barons" of the day.

It is no coincidence that this has happened with the parallel contributions to politicians and political parties who are more than willing to appoint judges and move them up based on their helping out their big contributors.

We have the best judicial system money can buy. Words are meaningless, and so are laws, if they are not enforced.

Why teach Agricultural Law under these conditions? Wouldn't it be more constructive to teach how the law is being manipulated for competitive advantage by large companies?

5/09/2008 9:49 AM  
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