Through Farm Commons and starting with sustainable farmers, Rachel Armstrong is reforming legal services in a way that respects the client as a primary source of knowledge, inspiration, and solutions and helps changemakers thrive.
La idea nueva
Whether you’ve changed places (like an immigrant arriving in a new country) or the place you’ve known your whole life is shifting under your feet (as is the case across much of rural America), embracing change as a key to being able to thrive in the world is more critical today than ever before. For this reason Rachel Armstrong believes we must support changemakers and first movers like the immigrant entrepreneur or sustainable farmer, especially since – as Rachel has realized – such groups of innovative, values-aligned, and insular entrepreneurs are often operating ahead of or outside of existing systems like legal services that are still holding on to old ways of operating.
Starting with sustainable farmers, Rachel is building the model of the ‘legal commons’ to reform legal services in a way that respects clients as a primary source of knowledge, inspiration and solutions, and that helps first sustainable farmers and then other types of innovative entrepreneurs and changemakers become less legally vulnerable and more successful.
Rachel currently advances this longer-term vision through Farm Commons, a national effort that empowers sustainable farmers to write a new body of sustainable farm law by and for themselves, fundamentally restructuring legal services as a “legal commons. ” To date more than 80 model lease agreements, labor practices, fence law frameworks, and the like have been generated through facilitated hands-on “Farm Law 101” workshops hosted regularly throughout the country and freely shared thousands of times online. The commons is regularly refreshed by a network of “co-presenters” currently active across 10 communities in the Midwest, and thousands of farmers, food entrepreneurs, and attorneys are part of the growing national community turning to this resource to find legal precedents and proven models for bringing their values in line with their businesses. Through these efforts, Farm Commons redefines the character of the attorney-entrepreneur relationship and offers what entrepreneurs want: business legal services that are focused on people and relationships. In this way, Farm Commons is flipping business legal services into an accountable, grassroots industry that enables social change. In doing so Rachel likes to say “we help farmers put the legal legs under their co-created legal solutions... legs that will walk us all into the future.”
Sustainable farmers, immigrant entrepreneurs and franchisees, or new moms opening home-based daycare centers actually have a lot in common. They all have established norms and ways of doing things, they prefer to learn from each other, and they don’t have easy access to legal information and levers of power. Of these constituencies, Rachel knows sustainable farmers best; for much of her life she was one. Their business models are novel; their sales, labor, and land tenure strategies don’t fit the legal mold, which was built for the conventional farm. The foundational legal framework of the farm does not reflect or integrate the values that grant sustainable farming its potential: standard land leases do not reward the farmer for her investment in the soil; partnership agreements don’t contemplate scaling return on interest to the longer timeframe necessary for profitability; and sales agreements do not accommodate the unpredictability wrought by climate change.
And though these details speak to Rachel’s depth of understanding of her chosen field, she’s quick to point out that “the legal instability faced by sustainable farmers is not exclusive to those farming the land responsibly.” Sustainable farmers are just one case study that illustrates how broken small business legal services is in the United States. Business people of all stripes struggle to find affordable, quality legal services that embody their values.
This of course is a two way street. It’s not just that farmers and business folks are innovating faster than, say, today’s legal sector’s ability to keep up. Rachel notes that “the legal services industry is going through a huge disruption as attorney value is questioned, fees rise, firms collapse, and law schools go under.” While general practice attorneys are currently the primary source of legal information and assistance for farmers and small business in general, there are often engaged narrowly “to keep the IRS off my back”, and according to farmers themselves, are not thought to actually understand farming, nor to be very helpful. And Rachel agrees that they don’t; “Farm law is a specialty, to say nothing of the nuanced complications within farm law for the sustainable farm operation. The affordable small business attorney cannot afford to specialize, even where they are present in rural and small communities.” They are less present because of how student debt and low rural profitability has pushed most beginning lawyers to big cities, and where book publishers and online template providers have filled other niches, they haven’t found it profitable to tackle the nuance in farm law. The few legal professionals that remain tend to obscure the fact that writing a lease is actually quite simple; rather than fostering values or supporting innovation, small town lawyers are to worried about looking smart or making a profit.
According to Rachel,
“this speaks to a much deeper problem: Clients are not respected as integral elements of the legal services process. A client is expected to go to an attorney who renders opinions and advice based on his or her expertise—not on the full engagement of the client in the process. The legal services status quo is missing a key tenant of social change: Those most affected by a problem are in the best position to create the solution. When we are missing the full engagement of the affected community in creating solutions, we create solutions that are less creative, less effective, and attend to symptoms rather than causes. At the end of the day, the legal services status quo does not empower communities to define their legal destiny.”
But – as is always the case – this is easier said than done. Now is not a great time for farmers of any type to step out of their day-to-day (often hand-to-mouth) existences and discuss the virtues of a legal commons. In fact, farmers are in crisis mode; 90% of all farms disappeared from rural America between 1970 and 2000. The land is still there, of course. What’s changed is that it has been consolidated into corporate ownership and management. According to Rachel, who grew up in rural Minnesota against this backdrop, “the [conventional] farmers that remain are like modern-day serfs” unable to afford land or laboring under a vertically integrated system supplying one company one product, for life. In Nov 2017 the Omaha World Herald cited a USDA report that found “median income from farming is expected to be a negative $1,093 [in 2018], with more than half of farm households losing money by farming.” This means that farmers and their families must rely on non-farm income to make ends meet, and this strain on families (and on traditional gender roles) has Minnesota Public Radio and the Minneapolis Star Tribune reporting that farmer suicides in that state are higher than they’ve been in nearly 40 yrs, worse even than rates for combat veterans. The “free fall” of commodity farming has been met by an encouraging wave of sustainable farming, but for this wave to be sustained – much less provide an alternative to struggling farmers – these folks, too, have more work to do.
Fundamentally, Farm Commons restructures legal services as a legal commons. Just as a land commons is a resource managed by the whole for the mutual benefit of the entire community, so can a legal commons allow people to manage their legal affairs for their mutual benefit. Within a legal commons, people are connected to each other and share the tools to collectively determine the use of a shared resource, while mutually enforcing agreed upon terms within their community. Farm Commons creates this ecosystem within the realm of the law.
As Rachel is modeling it, in a legal commons, sustainable farmers learn about current legal dynamics, create their desired legal solutions and support each other as they implement and enforce solutions that capture their values. In its final manifestation, the legal commons is witnessed as a simple piece of paper—a lease, a sales contract, a partnership agreement, an employment contract, cooperative bylaws, and more. But Rachel points out that “behind that piece of paper is a revolution in practice. Behind each piece of legal paperwork is a community supporting the negotiation and implementation of a shared agreement. Paperwork is powerful in its ability to institutionalize shared values. It can be a catalyst for solidifying new social norms and behavior.” Indeed, paperwork, more so than litigation, legislation or regulations, shapes the everyday legal dynamics that dictate day-to-day operations attendant to buying, selling, leasing, and partnering. If we look at failure of new sustainable farm because of bad communications, divorce, or sometimes land access, it’s easy to see that it’s usually incredibly intertwined with relationships. “More often than anything else,” according to Rachel, hence why “our work is essentially about boosting relationships.”
Farm Commons builds a legal commons, then, by bringing together the community of working sustainable farmers, collaboratively creating heir desired legal solutions, memorializing them in paperwork, and sharing them. Most actively during the winter “down season”, they build farmer community and knowledge of the law through workshops, print materials, and online educational forums. They have “co-presenters” in ten communities across the Midwest that convene either “Farm Law 101” workshops or strategy sessions. Of farmers attending workshops, 89% planned to make at least one specific, legal-risk reducing change to their farm business. Two to three months later, 100% had already made at least one change and over 95% still planned to make additional changes. Changes include things like forming an LLC or getting an operating agreement written down and participating farmers – on average – make 4.5 out of 16 recommendations, usually within 3 months. Meanwhile, strategy sessions in places like Bayfield, WI or Ashland, WI see farmers coming together to pilot new and legally sound solutions in areas where, for example, the tourism economy is limiting the housing stock and making it hard to attract seasonal workers, but where a ski hill has available housing. With housing and protections for migrant workers being a particularly complicated area of the law, the solution this community came to was detailed, shared, and of real interest across the region.
Throughout the rest of the year, a backbone Farm Commons team and the community-embedded “co-presenters” play the role of librarians of the 80+ resources and the 1,000s of pages of materials available on FarmCommons.org. A farmer can use the “My Farm Law To Do List” - an online diagnostic and quiz - to be guided to the right document, and Farm Commons colleagues regularly show up at networking events and old-fashioned conferences, still very popular in farm culture. With an eye towards expansion, new co-presenters are identified at each workshop, and enter a vetting and training process. Going forward, Rachel envisions building more of a state-by-state – and ultimately nationwide - node concept with a target of three farmer leaders in each state.
For increasing numbers of farmers directly involved, Rachel is proving that it is possible to reform legal services to place the inherent knowledge, solutions, and creativity of the entrepreneur at the center. But for the promise of the legal commons model to spread, it needs to disrupt the legal services industry where the status quo is entrenched. Here Rachel finds that it is helpful to point out that the vision of a legal commons is a model for user-generated law where attorneys are less central, but still a critical player. In the emerging model, entrepreneurs absolutely access attorney expertise while developing community-led solutions that create authentic change and values-driven stability. But instead of being offered answers (or sent to other service providers, be they insurance agents or other lawyers), the attorney will be trained in how to understand the many facets of the problem a client is facing and not offer an answer, but mobilize towards some action, supported by the living examples offered up by the field and living in the legal commons. Rachel is planning to have an “attorney mentoring model” launched but the end of 2018 to formally help the profession navigate the redefinition of the character of the attorney-entrepreneur relationship.
As more farmers see their values reflected in the law and embrace changes that make their enterprises more stable and secure, not only are they more successful but they gain an even greater sense of autonomy, self-determination, and control… things that are also particularly attractive to commodity farmers, and sorely missing. As price takers, subject to whims of buyers, government, trade policies, Rachel hopes that we might invite them to experience the freedom that sustainable famers feel and, by helping alternative choices become more visible and viable, offer these conventional (and struggling) farmers a pathway into more sustainable, cohesive, resilient way of living on and working the land. Against the “free fall” of commodity farming, the challenges presented by climate change, and the strain on rural relationships at home and beyond, Rachel sees her work as ultimately having the potential to inspire a shift towards more regenerative practices with farmers collaborating, working in concert with nature to heal scarred land, and enriching the rural conversation (as sustainable farms are increasingly owned by women, minorities, and first-generation farmers with diverse perspectives).
Beyond farming, Rachel is already cultivating partnerships and alliances so that other professions that can benefit from their own legal commons. In looking at the growing prevalence of workers in the “gig economy”, for example, Michelle Miller of CoWorker.org not only sees the value of the legal commons approach, but notes that famers were living in the "gig economy" long before the rest of us, and as such, they are in the best position to point the way out. “Farmers are showing the way. Farm Commons helps make it legally legitimate, now.” This is because Rachel believes that humans are able to be our best selves when we feel a sense of belonging, value, and dignity within a community; a force a legal commons helps create.
Growing up in a large family on an old farm in Northern Minnesota, Rachel always wanted to be a farmer, and fondly remembers how her family “set aside hundreds of pounds of potatoes, canned vegetables, and froze fruit for winter.” What she didn’t appreciate until later in life is that her family preserved food in part because her parents’ income fell below the poverty line, and – despite working hard to make a living – relied on public assistance to make ends meet. When leaving home for college, she heeded her mother’s advice and avoided agriculture, studying wildlife ecology at the University of Wisconsin Madison instead. For a time she found solace in nature, close enough to her real desire to be a farmer. But then, shortly after graduating, her boyfriend at the time took his own life, “in part out of the isolation of rural life.”
Needing to soothe her soul again, Rachel returned to where she belonged and found “a vibrant community of farmers who made a living growing environmentally sustainable food.” Her entrepreneurial tendencies were on full display. While working as a farmhand, managing community gardens, and helping steer a coalition of farms, she launched a catering business that used local foods and founded a farm-to-chef marketing program that raised $50,000 within one year. At the same time, however, she realized that her community needed legal support and became worried for the future of the sustainable food movement. “If we couldn’t answer our most basic legal questions, what kind of foundation were we building our movement upon?” It was this question that she carried with her to law school and that Farm Commons is trying to answer.