Scholarship in food law is replicating broader societal interest in sustainability and local foods as a means to changing the dominant food system. The work of lawyers is critical to helping institutionalize innovative food systems ideas, but the scholarship often fails to engage in reflexive analysis of whether particular policies will effectively advance articulated goals. As a result, attention is disproportionately directed at certain initiatives at the expense of other, potentially more effective strategies. To address this, legal scholars need to incorporate other social science disciplines into their scholarship to develop thoughtful, critical analyses of the roles of law in building alternative food networks.
Having recognized the limitations of local food systems, regional and midscale food systems are being advocated to augment the local initiatives. Cooperatives formed under the Capper-Volstead Act are legal entities with significant potential to help regionalize food systems. However, their formation and operation must be undertaken with consideration to the legislative history, statutory interpretation, and current economic contexts that allow some cooperatives to operate in ways that frustrate the goals of alternative food systems advocates. By incorporating social science critiques of food advocacy work and applying these critiques to a reflexive analysis of a legal tool for advancing alternative food systems, this Article demonstrates the important contributions that legal scholars can make through more engaged scholarship with other disciplines.
INTRODUCTION 226 II. LOCALISM AS A FLAWED ALTERNATIVE FOOD NETWORK STRATEGY 228 A. The "Local Trap" in the Legal Scholarship 230 B. The "Special"Trap 231 C. Scholarly Purpose of Identifying Appropriate Legal Tools for Alternative Food Networks 233 III. AUGMENTING THE LOCAL 235 IV. THE CAPPER-VOLSTEAD ACT 237 A. Shennan, Clayton and Capper-Volstead 237 B. Privileges and Limits of the Capper-Volstead Act 240 1. Privileges and QuaJifications 240 2. Continued Importance, Critiques 242 V. THE COOPERATIVES AS A TOOL FOR DEVELOPING REGIONAL FOOD SYSTEMS 244 A. Cooperative Principles in the Capper-Volstead Act that Advance Alternative Food Network Goals 244 1. Owned and Operated for the Benefit of Producers 245 2. Voting, Democracy Controls 245 3. Restrictions on Profits Enable Investments Back into the Cooperative 247 B. Cooperative, Coordinated Marketing and Bargaining 249 1. Foster Differentiated, Values Based, Embedded Marketing 249 2. Gain Access to Institutional Buyers by Aggregating Production 251 C. Operate Across Political Boundaries 253 VI. DO COOPERATIVES REALLY ADDRESS THE SOCIAL SCIENCE CRITIQUES? 253 A. Regional Food Systems Goals 254 B. Dra wbacks of Capper-Volstead Act Cooperatives 254 C. Addressing Social Science Critiques 256 VII. CONCLUSION 258 I. INTRODUCTION
"Why would I get GAP certified? I'm just getting by, and that seems expensive."
"Because then you can grow your farm, you'll be able to sell to bigger buyers."
"That would be great, but how can I know there will be a buyer? And will the sales cover the gap certification costs?"
"There are buyers. We can pay for the GAP certification as a group, and then coordinate production with a memorandum of agreement with the buyers to make sure there's a buyer."
This paraphrases a conversation that was heard at a meeting among small and very small diversified farmers and a Good Agricultural Practices (GAP) certification advocate. (1) It exemplifies a number of issues in the local food system. Small farms are struggling to get by, and local sales through farmers markets and community supported agriculture can only go so far. Yet scaling up to reach larger institutional buyers and bigger markets--where they could have a more significant impact--is difficult for them because of food safety certification issues and challenges in marketing." Why does this possibly matter? Local food systems advocates care because they desire to see a healthier, more just, ecologically sustainable, and democratic food system--attributes that they do not perceive in the current dominant food system in the United States, and that they think will be outcomes of a local, small farm, direct marketing based food system.
While the struggle of small farms to succeed is a tangible, highly evident problem, there are larger problems with this local foods strategy for changing a food system. These include: the misplaced assumption that local in itself will necessarily produce the results that advocates envision of a local food system, conflating local as the ends rather than as the means, disregarding other scalar and food systems strategies, and failing to engage in critical analyses and politically engaged work.
This Article will draw attention to these issues as they manifest in the legal scholarship, and offer an example of how legal scholars might apply their expertise to identify more effective tools of change for reforming the food system. Part II will expand on the critiques of local food systems scholarship in the legal literature. This is not to denigrate the importance of the work that has been done so far. Rather, the argument in this Part is that scholars should identify the precise goal and think creatively about which legal tools might be most effective at promoting that particular goal. Part III introduces the idea of regionalizing a food system as a strategy to augment local food systems work. This Part will explain what an idealized regional food system is, and how the concept incorporates attributes beyond just geography or scale to achieve food systems change. Part IV lays out the history and legal structure of the Capper-Volstead Act. (3) Part V proposes farmers' cooperatives as a potential tool for achieving regionalized food systems goals. This Part also recognizes limitations of cooperatives. The Article emphasizes that law can be used as a tool for restructuring food systems, but legal scholars need to critically evaluate laws in their broader social and political context in order to fully assess their potential usefulness and drawbacks and identify alternative strategies. Through greater engagement with other areas of agrifood systems scholarship, lawyers can have a powerful impact on how the law is used as a tool to operationalize the goals of alternative food systems advocates.
Localism as a Flawed Alternative Food Network Strategy
Dissatisfied with globalized, capitalist, corporatist food regimes and their perceived negative impacts on social and ecological systems, (4) consumers and activists are exploring multiple avenues for building more democratically accountable, (5) socially just, ecologically sustainable, and healthier food systems. (6) These are often grouped together as "alternative food networks" (AFNs). (7)
The concept of local food has gained particular cache as a paradigm among academics and activists for achieving AFN goals. (8) While the particular goals of a project may vary, the general assumption of much local foods work is that more localized systems of production and consumption will create more connected and engaged producers and consumers, thereby producing a food system with the characteristics of AFNs. (9) The localization of food and direct marketing are also seen as strategies for community and economic development to counter the negative prices trends of the globalized food system. (10)
There are, however, a number of critiques of the extent to which local can really achieve the ends its proponents articulate. As Born and Purcell argue, no scale is inherently going to produce any particular outcomes. (11) They make three critiques of the concept of "local." First, the current interest in local problematically assumes local will produce particular outcomes, such as democracy, when case evidence shows it can produce oligarchy. (12) Second, it conflates the ends with the means, rather than treating local as the means to the end. (13) For instance, focusing on local and direct sales as an economic development strategy may cost a community if they fail to take advantage of another region's comparative advantage. And third, it obscures other scalar options that could be more effective. (14) In a similar critique, Bellows and Hamm note that buying local is a form of import substitution, and the relative impacts on fair trade, equity and democracy, and environmental stewardship of local versus global purchasing should be evaluated. (15)
The political failures of localism strategies have received particular attention from other scholars in agrifood studies. Allen notes that workers and the principles of justice are often not adequately considered in local food systems work, and so the work of identifying and addressing the social forces that create inequities is not occurring. (16) She argues that to work towards a more socially just food system involves:
(i) increasing understanding of the economic, political and cultural forces that have configured the current agrifood system; (ii) a willingness to analyze and reflect upon which local food system priorities and activities move in the direction of, rather than away from, social justice and (iii) establish and periodically evaluate criteria for social justice. (17) Allen's focus on justice aligns with several other critiques of how localism has replaced reflexive, political action with a politics of consumption. Much of local food activism relies on market forces to produce civic engagement and sustainability, disregarding many other concerns, such as ecology, cultural and biological diversity, power, justice, and spirituality. (18) Critiques often note that realizing food system reform requires more considerations of the politics of actions and context in which they are embedded--individuals need to take responsibility for examining and addressing the complexities of how and why the food system is producing...