Nebraska's Corporate-Farming Law and Discriminatory Effects Under the Dormant Commerce Clause

74 Pages Posted: 1 Feb 2010

See all articles by Anthony B. Schutz

Anthony B. Schutz

University of Nebraska at Lincoln - College of Law

Date Written: October 13, 2009


Laws dealing with agriculture have provided a great deal of constitutional law. This article explores one more recent example. Corporate-farming laws are one hallmark of agricultural law. They regulate the use of limited-liability business forms for owning agricultural land, engaging in production agriculture, or both on approximately 312 million acres of farmland in nine states. That is approximately 77% of the land in those states and approximately one-third of all farmland in the United States. These regulations generally take the form of restricting the use of limited-liability to those producers that the legislature or electorate have deemed “real farmers” or “family farmers.” This article evaluates whether the “shadows cast by the congressional commerce power” prevent a state from defining farmers. Stated simply, can states give these farmers preferential access to the means of production without violating the dormant Commerce Clause ("DCC") doctrine?

The challenge of conducting a rigorous study of both discriminatory-effects doctrine and corporate-farming laws is evident from the length of this article. It deals with a somewhat complex state-law restriction operating within a diverse agricultural industry, while at the same time evaluating that law under a notoriously complex body of unsettled doctrine that, at times, needs further development. And it does this in response to a particular court's disposition of the issue. But complexity is far from atypical in DCC challenges. So I've resisted the temptation to oversimplify the DCC doctrine and corporate-farming measures in favor of a thorough analysis of both. In the end, this exercise sheds a great deal of light in the shadows of Congress's power to regulate commerce and states' ability to provide favorable treatment to those that it deems farmers.

Keywords: agriculture, dormant commerce clause, farmers, discrimination, discriminatory effects

Suggested Citation

Schutz, Anthony B., Nebraska's Corporate-Farming Law and Discriminatory Effects Under the Dormant Commerce Clause (October 13, 2009). Nebraska Law Review, Vol. 88, No. 1, 2009, Available at SSRN:

Anthony B. Schutz (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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