Sunday, November 23, 2008

Teaching Agricultural Law: Paradigm Shift or More of the Same

Susan thoughts are awesome and exactly what this upcoming AALA panel should be about. I am the newest member of the bunch that will be on the panel and I offer my thoughts with all the trepidation of a person with only a bit of experience.

To me, agricultural law is the study of a regulated industry. Historically, a big part of that study involved laws that were geared at who the players were and certain assumptions about those players. Today, those players have perhaps changed (or, at least, the perception of those players has changed). And I agree with Susan that most producers are sophisticated business people (or, perhaps, they should be) who can be expected to know and understand law at some level and the risks associated with production at a high level. And the systems we have in place should work off of an accurate understanding of who the people affected by the law are.

But I do not see this as a shift in the focus of agricultural law.

Read the rest of this post . . . .
One conception of agricultural law focuses on the law primarily--the institutions, procedures, and substantive rules--and studies its application in a common factual setting (the ag industry). That law is, of course, created with a view of the industry in mind that brings to bear a vision of what is good and bad. The land of good and bad is the realm I think of as policy. With agricultural law, I use policy in a secondary capacity to inform the creation and existence of the law as well as the application thereof to scenarios where the law's text does not generate a clear answer. And, at times, I use it to suggest areas for new approaches to problems for which the law does not currently provide an answer.

My conception of primary and secondary focuses does not, however, dictate the order of coverage within my course. That is, at the outset, we explore the development of the ag sector, the policies in vogue at different periods of time (or the needs of the day), and take a general look at laws that very clearly evince that policy. This proves the point of a continually changing industry and electorate. And it is in those initial stages that I add the most recent chapter of our development. Defining representations of that development are the laws resulting therefrom.

Of course, the law lags behind normative conceptions of the industry (for better and for worse). And it is here that my view of the lawyer and agricultural law is most salient. That is, I envision the lawyer acting within the agricultural sector navigating the law as it currently exists, with all the problems that inhere in outdated or unwise law, law that may still be wise, and law that we would like to change or create in light of new policy concerns. That is, I tend to see agricultural law as defined by the agricultural lawyer--the lawyer who works in governmental or private capacities within the sector that produces agricultural goods. In other words, I'm not sure agricultural law is law is about farming or farmers--its about law in the agricultural sector.

With regard to a specific subject like articles 2, 7, and 9 of the UCC, I teach them because they are in use. Historically, I would have drawn upon the special treatment for farmers as something to question and to use in the application of this law. Today, that approach would not be appropriate (except perhaps for some Packers and Stockyards regulation with regard to payment), but the existence of these rules and their application is content to which I think students need exposure, not as a way of understanding agricultural policy, but rather to understand the law at work in the agricultural sector.

In the end, I suppose my course (which is some evidence of the discipline) is a rather nuts-and-bolts approach to legal rules that live--and therefore change--in a broader context. Elucidating those rules is an important (though far from sole or maybe even primary) role for the legal academy. And, in so doing, we explore the policies underlying the rules and question their continued validity or current parameters. One upshot is that coherence is maintained over the long term by identifying areas of law that affect agriculture. The source of those laws come from a variety of different policy influences (e.g., political concerns for the environment, local food, good food, agribusiness, rural development, etc.). But the resulting law is always the focal point, corralled into a discrete area by the industry upon which the law operates.

This conception of law teaching may, of course, raise fundamental questions about what and how to teach law students. And I am continually developing my thoughts on using areas of law and their attendant policies to train and, more importantly, engage students in their own training. In a related vein, one's understanding of what lawyers are (and what they should be) is by no means easy to pin down.

And, of course, I'm always open to the possibility that I am completely wrongheaded.

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