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.
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.
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