82 Pages Posted: 24 Apr 2006 Last revised: 22 Mar 2012
This Article investigates law's constitutive rhetoric about rural people, places, and livelihoods. Specifically, it considers five categories of judicial opinions that discuss the legal relevance of rurality: judicial self-identification as rural; definitions of rural; line-drawing between rural and urban; taking judicial notice of rural characteristics; and idealized portrayals of the rural. Viewed together, these clusters of opinions reveal a comprehensive - if not entirely coherent - judicial portrait of rurality. They also provide an overview of the many instances when a rural setting is relevant to a legal outcome. Implicated are issues of tort, property, criminal, and constitutional law, among others.
This collection of judicial narratives reveals that law's portrait of rurality has been greatly influenced by popular perceptions of the rural that persist in our national consciousness, including nostalgia for our rural past. Such nostalgia is reflected in judicial assumptions that rural areas are safe and that rural people are neighborly. It is also evident in idyll-ising rhetoric about rural land. In addition, the long-standing notion that law should play less of a role in rural livelihoods persists, apparently based on assumptions that rural people are self-sufficient, rural communities self-contained.
The cases surveyed illustrate not only how legal rhetoric constitutes, maintains, and transforms the rural, but also how this rhetoric demonstrably influences outcomes. With respect to some issues, law's rhetoric - and therefore law itself - lags behind reality, due in part to out-dated assumptions about rural communities. Other legal rules have evolved to reflect rural realities, changed as they are in recent years. While this Article lauds courts for the attention they have paid to the dimension of place in legal analysis, it nevertheless argues that judges should be more careful not to rely on stereotypes in making and applying legal rules. Judges should pay closer attention to rural realities, including the differences among the many places and people they label "rural."
Keywords: rhetoric, rural, land use, property, tort, criminal procedure, criminal law, self-sufficiency, informal norms, equal protection, idealization
JEL Classification: O18, K10, K11, K14
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