ABSTRACT
The recent proliferation of agricultural anti-whistleblower legislation, or ‘ag-gag’, has finally given the right to exclude the weight that property theory claims it deserves. By offering hefty fines and serious imprisonment to would-be agricultural trespassers, ag-gag statutes might be the only ones that treat the right to exclude seriously. Scholars and judges are taking notice. Given the significant environmental harms that agriculture causes – nearly one-third of all greenhouse gas emissions – and the conspicuous First Amendment concerns, it’s no wonder. But what commentators aren’t noticing is just how radical ag-gag is when compared to the legal regimes of which it purports to be a part. This Article remedies that gap.
Ag-gag’s extremism is two pronged. First, ag-gag rewrites the history of agricultural and animal law by suggesting that investigations into, citizen enforcement of, and education about agriculture’s harms is something new. In reality, citizens have been the primary enforcers of animal law since the mid 1800s, and the investigations they made led to the foundation of agricultural regulatory programs still in place today. Second, it weaponizes the right to exclude, which has always been strict in theory and nimble in practice. Often hailed as the fundamental principle of property, and the object of trespass, the right to exclude is almost always thrown aside when stood up against some sort of socially beneficial trespass. Ag-gag does the opposite, elevating the right to exclude to the primary determinant of the trespass framework. This promotion is unsettling, and interrogating why leads to the conclusion that we don’t care all that much about the right to exclude. If we did, exclusion’s supremacy in ag-gag wouldn’t be so striking. Instead, this Article contends that what we care about are secondary harms and, specifically, the right of pursuit.
Derron, Anthony, Trespass Plus: Ag-Gag and the Right to Exclude (March 4, 2022). Georgetown Environmental Law Review (GELR), forthcoming.
First posted 2022-03-08 10:00:34
Leave a Reply