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Corporate-Farming Measures in a Post-Jones World

49 Pages Posted: 30 Jan 2010  

Anthony B. Schutz

University of Nebraska at Lincoln - College of Law

Date Written: March 1, 2009

Abstract

Corporate-farming laws represent a collective statement about what producers are best for production agriculture. This collective statement and its underlying rationales have been cast aside, or perhaps found wanting, in recent litigation under the Dormant Commerce Clause (DCC) doctrine. This Article explores the continued validity of corporate-farming restrictions after Jones v. Gale, a recent Eighth Circuit Court of Appeals decision striking down Nebraska’s restriction under the DCC doctrine. Elsewhere, I have explained why Jones was a difficult case and why corporate-farming measures may not be discriminatory for purposes of the DCC doctrine. Here, I take Jones at face value, and evaluate the balance of state corporate-farming laws for discrimination. In so doing, I provide a helpful synthesis of corporate-farming measures, which should allow policymakers to see how these laws differ from state to state. This should inform the necessity of amendments, provide some examples of amendments that may satisfy the DCC doctrine in the wake of Jones, and provide guidance to those interpreting and applying existing restrictions.

While there are broader overviews of how corporate-farming measures resemble one another, no article as of this writing provides an analysis of the common traits of corporate-farming measures with the DCC doctrine’s concept of discrimination in mind. This is likely because every commentator to consider the question concluded that corporate-farming measures were not discriminatory under the DCC doctrine. Post-Jones, however, discrimination has placed these laws in serious question. In order to understand which laws might be discriminatory, a new look at how corporate-farming laws operate is necessary.

This Article also uses Nebraska’s experience after Jones to provide an example of amendments that could bring a state’s corporate-farming measure into compliance with the DCC doctrine. The upside of engaging in these efforts is renewed attention to the various underlying rationales for corporate-farming restrictions. Nebraska’s experience also offers some short-term evidence of the sort of debate ensuing in the wake of Jones.

Keywords: agriculture, dormant commerce clause, state law, discrimination

Suggested Citation

Schutz, Anthony B., Corporate-Farming Measures in a Post-Jones World (March 1, 2009). Drake Journal of Agricultural Law, Vol. 14, No. 1, p. 97, 2009. Available at SSRN: https://ssrn.com/abstract=1544560

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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