"Women in Bluejeans"

While its been a period of time since my last entry as a guest blogger, Jim Chen's recent entry on Feminist Agricultural Law serves as a reminder of a related corollary. Specifically contrasting with the ongoing demise of traditional dominant farmers women are actively entering farming as independent owner operators. Yet whether as independent operators or as consumers women in agriculture remain primarily on the outside of mainstream legal investigations to the detriment of the nation's health.

A gendered perspective on food production is underscored when for example pesticide use in industrial agriculture is contemplated. Studies outside of legal academic investigations demonstrate that women take the brunt of the many toxic chemicals employed in conventional agriculture with the pact on their children obligating the further need of greater study. In contrast, formalistic investigations dominate studies on the regulatory state of farming leaving pesticide absorption rates for women and children on the margins of legal scrutiny.

Agricultural legal history moreover is dominated with well-defined gaps on the impact of gendered farming interests. Yet since the earlier colonial periods when female-farming interests confronted adverse federal hostility and arbitrary treatment of their independent operations. Further study of how they sought to defend their property moreover remains primarily lacking in formal legal studies.

Additional examples surface such as the active participation of women in the rural insurgency movements of the 1920s and 1930s that sought to protect independent owner operators. Yet once again rural women witnessed injurious treatment with consequences into the present. Until recently, the agricultural census for example failed to enumerate women operators in data sets thereby losing opportunities to assess gendered capital accumulation in the operation of their interests. Into the contemporary period women operators also continue to face inequities such as in accessing credit or failing to qualify for federal funds permitted dominant based agricultural interests in specialized programs notwithstanding their origins in the populism of the past.

Against the backdrop of inter alia increasing hunger levels, consumers seeking the specialized ethnic products that women produce, and the realm of food safety issues facing the nation from large scale food production, thereby renders imperative the above plea for gendered and feminist studies in law.

Feminist agricultural law

Let me begin with a scholarly confession: Ever since I read Helen Fisher, Anatomy of Love: A Natural History of Mating, Marriage, and Why We Stray (1993), nearly two decades ago, I've longed to write an article called Feminist Agricultural Law (or, alternatively, Agricultural Legal Feminism). Fisher's observations on agricultural technology stirred my blood:

The Plow. There is probably no single tool in human history that wreaked such havoc between women and men or stimulated so many changes in human patterns of sex and love as the plow. [Id. at 260.]

Alas, it never came to pass. I envisioned Feminist Agricultural Law as an offshoot from (or at least a section of) the anticipated conclusion to my would-be "Vanderbilt trilogy" of articles on agricultural law: The American Ideology, 48 Vand. L. Rev. 908 (1995) and Of Agriculture's First Disobedience and its Fruit, 48 Vand. L. Rev. 1261 (1995). I never did finish that third article. To be sure, I salvaged some of my work in Fugitives and Agrarians in a World Without Frontiers, 18 Cardozo L. Rev. 1031 (1996) (which, in the fashion of I'll Take My Stand's Stark Young, preached agrarian ideas by remote control from New York City), and in my subsequent scholarship on Wickard v. Filburn. But neither the grand conclusion nor Feminist Agricultural Law ever emerged from my fingertips.

Read the rest of this post . . . .My own failure to finish what I started, however, takes nothing away from the idea of feminist agricultural law. At least one Australian legal scholar, Malcolm Voyce, has devoted his career to sex-based differences in farmland tenure. Organizations such as American Agri-Women (on Twitter as @women4ag) advance the cause of women farmers. As a global matter, perhaps nothing contributes more to preparedness in times of disaster — let alone overall social justice — than the complete economic and political empowerment of women. As an open supporter of Feminist Law Professors (the blog) and feminist law professors (the group as a whole), I'm glad I made this point in the latest edition of Disaster Law and Policy.

The role of women in farming is as old as agrarian society, and it remains every bit as relevant and as contested as ever. Just today, Peggy Orenstein, author of the memoir Waiting for Daisy, performed a very clever twist on the theme of Michael Pollan's classic, The Omnivore's Dilemma: A Natural History of Four Meals (2006). Her New York Times essay, The femivore's dilemma, highlights a middle way that has drawn women seeking to avoid both the glass ceiling and the gilded cage: joining the growing cohort of chicks with chicks.

From the depths of remembrance and heights of romance, I now reach present time and real space. In the here and now, I remain painfully aware that I will probably never write a comprehensive piece called Feminist Agricultural Law. But I shall not flinch from promoting the idea, even if by so doing I am effectively assigning the mission of completing that piece to another scholar. I shall continue to ponder feminist agricultural law and agricultural legal feminism. These ideas lie close to the project — the one and only project — I regard as the sole legitimate expression of legal scholarship, that of translating legal knowledge for real-world use, that of realizing the dream of the law made flesh.

Problems With FDA Food Additive Approval Process

When I first began teaching food law, I was rather astonished to discover the process that the FDA has for approving the overwhelming number of food additives used in our processed foods. Let me rephrase that - I was astonished by the lack of a cohesive approval process. I wrote about FDA's non-approval system in my article, Reconnecting Consumers and Producers.

The Food Drug & Cosmetic Act requires pre-market approval for new food additives and states that no additive should be approved without a showing that its specified use will be safe. 21 U.S.C. sec. 348.

However, two huge categories of ingredients are excepted from the definition of "food additive." These exceptions are "prior approved substances," i.e., substances in common use prior to 1958 and ingredients that are "generally regarded as safe" or GRAS. Food companies initially had to submit scientific information to the FDA and wait for the agency to affirm GRAS status. Since 1997, however, the FDA has operated under a proposed rule that allows companies to self-determine that a new ingredient is safe and then to voluntarily notify FDA of its use. FDA can either affirm the GRAS status (a process that may take years) or simply not question it. 62 Fed. Reg. 18,938 (proposed Apr. 17, 1997) (to be codified at 21 C.F.R. pts. 170, 184, 186, and 570).

The GAO shares my concern with the workings of the GRAS process. In a recently released report, Food Safety: FDA Should Strengthen Its Oversight of Food Ingredients Determined to Be Generally Recognized as Safe (GRAS) it finds:

FDA’s oversight process does not help ensure the safety of all new GRAS determinations. FDA only reviews those GRAS determinations that companies submit to the agency’s voluntary notification program—the agency generally does not have information about other GRAS determinations companies have made because companies are not required to inform FDA of them. Furthermore, FDA has not taken certain steps that could help ensure the safety of GRAS determinations, particularly those about which the agency has not been notified. FDA has not issued guidance to companies on how to document their GRAS determinations or monitored companies to ensure that they have conducted GRAS determinations appropriately. Lastly, FDA has yet to issue a final regulation for its 1997 proposed rule that sets forth the framework and criteria for the voluntary notification program, potentially detracting from the program’s credibility.

In Response to Bunny

In response to Dean Jim Chen's Bunny call out to me. Thanks, Jim, for reminding me of my pet lamb, "Tiger" and my happy childhood on the farm. But, I followed the bunny link, started the news story (rabbit slaughter training) and thought to myself, "No, thanks." I will comment, however, that of all of the various types of dietary changes that American's might consider, I do not think that finding additional sources of meat is one that we should pursue. We all know that little secret that we in agriculture are not supposed to talk about - we would be better off eating less meat...

Bunny: It's what's for dinner (again)

Once again, a leading media source has put rabbit on the menu. The mere prospect of eating rabbit, lamb, or other animals with pet credentials (as tweeted by me) has generated a thoughtful response from Susan Schneider. I wonder anew: Will Susan once again hop to it?

Top 50 biotech blogs

The Jurisdynamics Network is pleased that the Medicareer blog has listed both Agricultural Law and Biolaw among the top 50 biotech blogs. And another list lauds Agricultural Law as one of the 50 best blogs on farm and agriculture.

AALS Agricultural Law Section

I am posting the following on behalf of David Myers, Professor of Law and Michael and Diane Swygert Teaching Fellow, Valparaiso University, School of Law.

Professor Myers, Valparaiso University, School of Law, chairs the AALS Section on Agricultural Law for 2011. He is pleased to announce that the Section will hold a joint program with the AALS Property Section at the 2011 AALS Conference in San Francisco. Professor Kali Murray, Marquette Law School, chairs the AALS Property Section.

The joint program has the theme "Changing Concepts of Water in Law." Professor Myers and Murray invite agricultural law professors to submit a proposal for presentation to the joint program. Please send a working title, a brief description of the paper, and (if available) any draft outline or manuscript.

The deadline for submitting a proposal is March 22, 2010.

Professors Myers and Murray will select the proposals that will be presented in San Francisco. They plan to have the presentations published as a symposium in a law review. Consequently, submitted proposals must be for unpublished work. They will establish deadlines for completing manuscripts after they have selected proposals for the joint session.

If interested, please send your proposal to both david.myers@valpo.edu and kalimurray@marquette.edu. They look forward to receiving your proposal.


On their behalf,

Drew Kershen

My Thoughts on the Divide

I just read a news release about the launch of a "social media website" sponsored by the Missouri Beef Industry Council. It's goal is to keep Missouri beef producers "apprised of 'activist attacks' on agriculture." The site, "Farmer Freedom" portrays itself as providing factual information to correct the record in the face of distortions in the media. I just visited the site. To be honest, I was very disappointed. While there are some interesting facts posted, the main focus of the website seems to be to attack the media, animal welfare groups, and environmentalists with an 'us against them' tone that I find destructive.

There are many positive and amazing aspects of American agriculture. I come from a farm family, and my legal career has always focused on agriculture. I am clearly not an activist attacking agriculture.

But I recognize - as do many others - that there are problems that we need to address. Some of these problems take their highest toll on the farmers themselves. When rural wells are contaminated, farm families suffer the consequences. When antibiotic resistant infections increase as a result of over-use of antibiotics in feed, farmers, farmworkers, and their families are most likely to be infected. When farm production methods evolve to require farmers to de-sensitize themselves from the pain that their farm animals suffer, most farmers that I know hate what they are doing, even if they don't admit it.

Farmers don't need a website providing propaganda telling them that there are no problems. What they need is an honest discussion about how we can address the problems that do exist.

And, on the hot button issue of animal welfare, wouldn't it be inspiring if farmers came out in force when a video of clear animal abuse came out - like the recent video of abuse of young calves at the Vermont slaughterhouse - not to criticize the media, not to demand laws banning video taping, but to shout out - we don't support treating animals that way. We can do better. The image of the American farmer would be enhanced, not weakened.