Monday, January 12, 2009

AALS Conference Wrap Up

The papers presented by Professor Kershen and Professor Schneider will be published in forthcoming issues of the Agricultural Law Update, available from the AALA. Below, I've included a set of opening remarks that I refrained from giving at the last minute in the interests of time. These were adequately covered in the meeting by the panelists, but I think they may have some value as a recap. After that is a question I received via e-mail from an audience member and my response.

Read the rest of this post . . . .

I believe agricultural law takes the agricultural sector and identifies laws that are unique to the sector or which are unique in their application and examines them. And I think we all agree about that general aspect of the cathedral. To the extent law school and legal scholarship are exercises in using and understanding law, then, this provides at least three pedagogical virtues.

1. The first is a general observation of any law school course and pertains chiefly to students. It develops a law student's legal abilities by working with manageable chunks of law that are, by necessity, cabined into an artificial space that we call a course (like contracts, torts, property, land use, environmental law, etc.).

2. But ag law is somewhat less artificial in its segregation from the rest of the law. That is, it is organized around a particular segment of the world from which we all gain access to food, fiber and fuel. That unifies the area in a way that is different from many other areas. Some courses take a similar tact, including space law, sports law, etc. In the context of a traditional law school curriculum, some refer to these as "capstone" courses, wherein the students understanding of many legal areas are honed in on an application of law to people as people experience it. Only lawyers, after all, see the law as criminal, civil, property, and tort. People see the law experientially, which may mean that agricultural law provides a valuable insight into how we should think about law in more dynamic ways (perhaps juris dynamically). This exercise is valuable to law students as well as scholars.

3. Aside from the dynamic nature of the area, it also provides a wonderful setting for real interdisciplinary work. Agricultural law has always involved economics, but it can and often does involve many other disciplines. This, in turn, helps us to better understand the facts upon which agricultural law operates, the consequences of legal change, and the need for such change. This is valuable both to the scholar and to the student.

Given these virtues, practical questions arise in the context of teaching agricultural law. There is, quite simply, a tremendous amount of law here and even more policy. So I'm interested in getting some input from our panel as to what law they view as the core aspects of agricultural law and what role they give policy in their courses. I've posted on the aglaw blog about how I view policy in the classroom (as secondary but necessary to the study of law), but my views on that are continually changing.

There is, of course, no single way of approaching this question of finding the core of ag law. For instance, some may think in terms of the basic themes of the discipline (e.g., striking a balance amongst certain interests, achieving a certain goal, etc., which may be where policy fits) while some may think along practical lines (e.g., what does the lawyer in a rural agricultural area encounter) and still others may think along other lines. But in the end, I suspect what will emerge are views about what general themes exist and what areas of law are the foundation for developing those themes.

The panelists' discussion did not do much to identify the core legal areas of study, but a fascinating discussion of agricultural law and its evolution over the years ensued. Professors Kershen and Chen took the lead in this regard. Professor Schneider provided a helpful analysis of the virtues of agricultural law and the criteria by which one should go about selecting materials for a course. I believe the entire proceeding will be available as a podcast at some point in the near future.

I received the following question from an audience member via e-mail after the panel discussion. My attempt at an answer follows:

I heard two types of claims on the "what is ag law" issue. First, there were claims that ag law included everything: labor law, antitrust, commercial law, everything. If this is really the case, then there is no ag law, only law. It would be as if someone compiled a bunch of railroad accident cases to talk about law and legal process. The compilation would be about law, not railroad-accident law.

On the other hand, there were all these complaints about how ag law wasn't included in the employment law texts, the commercial law texts, etc., because of all the special exceptions for, and special treatment of, agriculture. Now here you have something. Doesn't it make sense to try to define ag law as the special law that fits within those gaps.

A quick aside. The first chapter in our employment text is called "boundaries" and it deals with this issue. But we deal with this throughout the book and the type of analysis I allude to above works well for employment law. Clyde Summers from Penn has written a couple classic articles complaining about how all the normal contract and tort laws don't apply in employment cases. So there you go. Employment law consists of those special contract and tort rules that apply only in employment cases. If those rules ever become the same as general tort and contract rules (and that's the trend with the gradual demise of employment at will), then, poof, there won't be any "employment" law of contracts and torts, only contract and tort law.

My Response:

I think you are right in your conception of how one might envision a separate doctrine of ag law. I tend to wonder, however, whether the first claim would mean there is no ag law. Under a traditional paradigm, I suppose that is true. It would not, however, mean that the course lacks value. A good experiential-based model would place students in a setting where the lawyer must choose between and utilize many different areas of the law. This would, I think, constitute a capstone course—one in which rules that the students have already learned are utilized in a course that is unified only by the factual setting to which many different legal areas would apply. To me, the absence of a unique body of law (legal rules that differ for these particular actors) doesn’t necessarily mean that no value exists in such a study. After all, it could give us a fairly cohesive set of stories that illustrate the variety of legal problems that a client may bring to a lawyer’s door.

Ag law is different because there is a wealth of unique law. But the railroad example could be too. If one were to, for example, develop the railroad cases as a method of examining how many different legal questions arise within the railroad industry, then a decent capstone sort of experience emerges. But once this goes beyond the accident cases, one would find that the railroad industry experiences the law in ways that raise a host of legal questions, some of which do not involve unique law and raise unique policy concerns (though perhaps a course in public utilities would cover that ground).

I agree, however, that the presence of unique rules in a given area is an important part of defining a distinct area worthy of study under a traditional this-is-not-like-other-law paradigm. And ag law does have that. I would not take that to mean that the application of legal rules that aren't unique to the area must be omitted from coverage. But, as emerged from our program, choices have to be made. And in the law school curriculum such an omission may be compelling (though, I don’t think, unhelpfully duplicative).

The reason I resist the notion of uniqueness as the only way of defining a subject is that, on a broader level, perhaps contract, tort, and property don't necessarily have distinct boundaries either. If that is true, then many of the lines that we draw to manage course content are at least somewhat artificial. Further, if this sort of line drawing is artificial, then I suppose the best way of thinking about defining subject areas is to think about the utility of approaching the law in a certain compartmentalized frame. I think there might be value to approaching law with a subject that is bounded by the factual settings that arise (true capstones), rather than by unique legal rules. But the presence of unique legal rules surely has content-delivery value.

In the end, I think agricultural law has a hard time fitting into some notion of a capstone course. Given all of the legal rules that constitute unique treatment, or at least aren’t discussed elsewhere, it really does bring a distinct body of law to students. And when one considers the need to cut something, it makes sense to omit those subjects that are adequately covered elsewhere in the curriculum. As I reflect, I tend to do that with subjects like nuisance law and zoning, but I retain coverage of things that are not covered anywhere else in the curriculum. That means that agricultural law is not, strictly speaking, a capstone course. The common factual setting (which exists only in a very loose sense) serves not to simply create the opportunity to study how legal rules taught elsewhere in the curriculum practically operate. Rather, the legal rules that apply are also unique. Though, as Susan has explained elsewhere, perhaps that uniqueness is waning in some areas.


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