Sunday, November 23, 2008

Thoughts on Teaching Agricultural Law

The American Association of Law Schools (AALS) annual conference will be held in January 2009 in San Diego, and the session presented by the Agricultural Law section will focus on the definition of agricultural law. Our chair, Anthony Schutz has identified two related goals for the session: (1) To consider the pedagogical and scholarly value of agricultural law, and (2) To identify what belongs in the canon of agricultural law. In an email sent to session speakers last week, Anthony explained that, "given the various changes that the agricultural sector has undergone over the last twenty-five years, it is time to reconsider the roots of the subject matter to which our section is devoted."

I have been asked to speak about agricultural commercial law. Here are my initial thoughts —

  • During the farm crisis of the 1980s and 90s, I worked with midwestern farm families who desperately needed legal help, whose best efforts were thwarted by forces beyond their control, and who often represented the very best of an agrarian tradition of hard work and love of the land.
  • Many of our commercial laws recognized the unique nature of agricultural finance and a lack of legal sophistication in the farming community. Under the Uniform Commercial Code, there were special rules for crop financing, exclusions for agricultural liens, and farmers were often not considered to be "merchants." Farmers Home Administration (now renamed Farm Service Agency) was a major direct lender, serving as the lender of last resort.
  • In contrast, today many farmers are very sophisticated and in some instances one could say too savvy about angling their rights under the law. Published case law often reflects complex farm program or federal crop insurance "planning" or the sorting out of huge feedlot operations when check-kiting schemes collapse. And when the "mom and pop" operation seeks redress in the law, it is often not available. Revised Article 9 eliminated most of the special provisions applicable to agriculture, and the law has moved away from some of its more paternalistic protections.
  • It seems that the application of commercial laws to agricultural operations is still interesting and important in that the products are so unique, but the study of these laws now seems to be based more on interest and intrigue as opposed to really different treatment under the law.
This leads me to consideration of the more fundamental reasons why the law should be different for agriculture - some of these reasons point to laws favoring farmers and some point to laws that are more restrictive. It is still an occupation controlled by natural forces of weather and climate. It still involves the production of living things. It still requires vast tracts of land, and it still consumes vast quantities of natural resources. A large segment of it still depends upon a marginalized underclass for its labor needs. And, it is still the industry that provides us with the most basic of human needs - food.

So, it now appears to me that the starting point of "agricultural law" should not be about farmers, but about farming. How do we want our food to be grown, by whom, and what food do we want to consume?

The production of food is such a basic need - it is something that people should know about, care about and be connected to. And, our laws should support and demand the production of good food through a transparent production process - not just supporting the industry as an industry.

Preliminary thoughts, to be sure. But a start . . .


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1/27/2009 9:07 AM  

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