Research Articles
Our research publications are a vital part of the Center's mission to conduct objective, timely, and non-partisan research into agricultural and food law issues and to provide that scholarship to the agricultural and food law communities. Information provided in these articles is not intended to be taken as legal advice nor as a substitute for qualified legal counsel.
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Index of Research Publications
Administrative Law
Animal Feeding Operations
Animal Law
Animal Identification
(Pendergrass)
(Pendergrass)
Bankruptcy
Property of the Bankruptcy Estate (Schneider)
Post-Till v. SCS Credit Corp. (Pittman)
Biotechnology
and Coexistence Measures (Peck)
(Redick and Adrian)
Varieties: A First Step Towards Coexistence (Endres)
Business Organizations/Cooperatives
Commercial Transactions
Corporate Farming Laws
Industries: Taking Stock of the Road Ahead (Pittman)
Crop Insurance
Environmental Law
Estate Planning and Taxation
Farm Programs
A Practitioner's View (O'Brien)
Finance and Credit
Food Labeling
Food Safety
PowerPoint Presentation (Roberts)
Information, Incentives, and Penalties (Roberts)
to Regulation of the Beef Industry (Houston)
to Take Photographs Under the Federal Food, Drug, and Cosmetic Act (Fortin)
International Trade
or Are "The Times They Are A-Changin'"? (Roberts)
A Practitioner's View (O'Brien)
Landowner Liability
Land Use
Legal Research
Livestock Marketing
Industries: Taking Stock of the Road Ahead (Pittman)
Packers and Stockyards Act (Lauck)
Organic and Sustainable Agriculture
Food Industry Professionals (Jillian)
Perishable Agricultural Commodities
Pesticides
Renewable Fuels
Recent Developments (Foy)
Rural Development
Secured Transactions
Urbanization and Agriculture
Meaning in Old Definitions (Branan)
Water Law
International Legal Issues Concerning Animal Cloning and Nanotechnology -- More of the Same or Are "The Times
They Are A-Changin'"?
Michael T. Roberts
Attorney at Law
In the global food system, emerging technologies such as use of growth-promotion hormones for cattle, genetic modification for plants and animals and, in more recent times, animal cloning and nanotechnology spark methods of production that are both novel and engender controversy. These technologies spawn debate over legal, ethical, social, moral, and religious issues. The divergent responses to these issues that sharply divide the worlds trading partners have mushroomed into widely-followed, protracted disputes at the World Trade Organization (WTO). This article outlines the international law framework that will deal with these issues and will explain the factual and legal backdrop in the two food-production cases before the WTO that have created sharp divisions between the United States and Europe and agitated the world food community for years: EC Measures Concerning Meat and Meat Products (Hormone Beef) and European Communities-Measures Affecting the Approval and Marketing of Biotech Products (Biotech Products). This article also briefly summarizes the emerging technologies used in the production of food product, animal cloning and nanotechnology, examines the developing national regulatory responses in the United States and Europe, and poses twenty issues that help frame the debate over these emerging technologies. Download this article.
Posted: December 4, 2008.
State-Level Catfish Labeling Laws
Elizabeth R. Springsteen
Staff Attorney
National Agricultural Law Center
Amid concerns over the viability of the domestic catfish industry and increasing importation of Vietnamese products labeled as "catfish," Congress added language to the 2002 Farm Bill (Farm Security and Rural Investment Act of 2002) requiring retail-level country-of-origin-labeling (COOL) for seafood, including catfish. However, the issue has also been regulated on the state level as well. Currently, six states- Tennessee, Louisiana, Arkansas, Mississippi, Alabama and Kansas- have labeling requirements for the sale of catfish. The purpose of this paper is to compare and contrast the provisions and requirements of the state statutes. Download this article.
Posted: October 1, 2008.
Plant Biotechnology Law After Geertson Seed Farms: Potential Impacts on Regulation, Liability, and Coexistence Measures
Alison E. Peck
Research Assistant
National Agricultural Law Center
In the 2007 decision Geertson Seed Farms v. Johanns, a district court held that the U.S. Department of Agricultures Animal and Plant Health Inspection Service violated the National Environmental Policy Act by deregulating genetically engineered alfalfa without performing an environmental impact assessment. This article reviews the Geertson decision and considers its actual and potential impact on the legal landscape related to plant biotechnology. After a summary of the decision, it briefly reviews the landscape of biotech regulation, liability rules, and coexistence strategies. Download this article.
Posted: September 22, 2008.
Guide to Compliance with the Japanese Positive List
Deanna Fortna Jones
Senior Attorney
Archer Daniels Midland Company
Effective May 29, 2006, the Japanese authorities implemented new regulations for maximum residue limits (MRLs) of approximately 800 agricultural chemicals in foods imported into Japan.. These new MRLs, together with approximately 10,000 existing MRLS already established by the Japanese government, are known as the positive list," compliance with which is necessary for importing food and food components into Japan. This practical article outlines steps that companies should take and concerns they should address to minimize the risk of economic harm resulting from a potential delay or ban. Download this article.
Posted: September 22, 2008.
States' Agritourism Statutes
Shannon Mirus
Staff Attorney
National Agricultural Law Center
Currently, nineteen states in the United States have enacted statutes that address agritourism. These statutes vary from liability protections for agritourism operators to tax credits to zoning requirements. Familiarity with these statutes is essential to anyone who engages in agritourism. States' Agritourism Statutes provides the statutory text of each of the states' agritourism statutes. It is important to note that there are other statutes that impact agritourism operators in each state; however, the statutes included below are the statutes that specifically mention and directly address agritourism. Several states have pending legislation; these new statutes will be added to the compilation as they are passed. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image in the map below. Download this article.
Posted: August 8, 2008.
The Renewable Fuels Standard Provisions Under the Clean Air Act: Overview and Recent Developments
Eric Foy
Research Associate
National Agricultural Law Center
Pursuant to the Federal Clean Air Act (CAA), as amended by Section 1501 of the Energy Policy Act of 2005, Congress required the Environmental Protection Agency to promulgate regulations implementing a renewable fuels program. These regulations are commonly referred to as the Renewable Fuels Standards (RFS). The RFS outline the total volume of renewable fuel that must be blended each year as part of the domestic fuel supply. In addition, EPA allows states to petition for waiver of the RFS in the event of severe economic or environmental harm, or inadequate domestic supply of renewable fuel. This article discusses the RFS and addresses the recent petition for waiver of the RFS submitted by the state of Texas. Download this article.
Posted: July 8, 2008.
Animal Cruelty Statutes - A State-By-State Analysis
Elizabeth R. Springsteen
Research Associate
National Agricultural Law Center
This article is a companion publication to States' Animal Cruelty Statutes and presents a state-by-state survey of classifications and penalties for acts of animal cruelty. Because each state differs in its definition of "cruelty," it is not meant to characterize specific acts as belonging to a certain category and thus meriting a specific punishment in the listed state. Instead, it is a reflection of how the individual states criminalize and punish different levels of animal-abusive criminal behavior. Download this article.
Posted: May 2, 2008.
States' Animal Cruelty Statutes
Elizabeth R. Springsteen
Research Associate
National Agricultural Law Center
Each state in the United States has enacted statutes to punish individuals who engage in cruelty to animals. While there are many similar characteristics, the actual codified provisions vary drastically from state to state. Familiarity with these statutes is essential to anyone who interacts with animals--from recreational hunting to raising livestock, from owning a pet to living alongside wild animals. States' Animal Cruelty Statutes provides the statutory text of each state's animal cruelty statutes, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image in the map provided. Download this article.
Posted: May 2, 2008.
Private Standards in the Global Food Sector: Relationship to WTO Agreements - PowerPoint Presentation
Michael T. Roberts
Attorney at Law
This PowerPoint is an expanded version of a presentation that was given on March 24, 2008, to the Institute of International Economic Law at the Georgetown University Law Center and introduces the legal issues associated with the interplay between private and public standards in the global food sector via the World Trade Organization's (WTO) agreements on Sanitary and Phytosanitary measures (SPS) and Technical Barriers to Trade (TBT). Download this presentation.
Posted: April 21, 2008.
States' Recreational Use Statutes
Elizabeth R. Springsteen
and
Rusty R. Rumley
National Agricultural Law Center
All 50 states in the United States have enacted statutes that confer some degree of liability protection to landowners who allow the general public to enter upon or make use of their land for recreational purposes. Commonly referred to as "recreational use statutes," these laws promote the public policy of encouraging landowners to open their lands so the public may access a wider range of recreational activities. These statutes are of particular importance to agricultural and rural owners of land. This article provides the statutory text of each state's recreational use statute, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image on the map provided.
Download this article.
Posted: February 8, 2008.
Introduction to Food Law in the People's Republic of China
Michael T. Roberts
Attorney at Law
The adequacy of the food regulation system in the People's Republic of China (PRC) has captured attention worldwide following numerous high profile cases of food safety problems in Chinese exports. Notwithstanding the dearth of primary and interpretative sources in English, this article seeks to facilitate an understanding of the regulation of food safety in China. This article begins with a brief narrative of recent food safety issues in China and an overview of the legal system in China then introduces food law in China, with a particular focus on the regulation of food safety. This analysis covers the administrative organization of government bodies that have authority over food safety and the substantive regulatory provisions that govern these government bodies and the safety of food product. Finally, the most recent developments of food law in China are briefly described. Download this article.
Posted: November 16, 2007
European Union Food Law Update - III
Nicole Coutrelis
Attorney at Law, Coutrelis & Associates
Brussels, Belgium and Paris, France
The purpose of this update is to present the main events that have taken place in the food law sector in the European Union (E.U.) in the second half of 2005. This update concentrates on fundamental topics and focuses on food and thus excludes from its scope questions regarding the management of agricultural products (Common Agricultural Policy, or CAP). The update is divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this article
Posted: November 16, 2007
United States Food Law Update - III
Michael T. Roberts
Member, Agriculture and Food Law Practice Group
Venable LLP
Washington, DC
This update summarizes significant changes and developments in food law over the second half of 2000 and provides a starting point for scholars, practitioners, food scientists, and policymakers to better understand the shaping of food law in modern society. Tracing the development of food law through these updates also builds an important historical context for the overall development of food law. New developments in state law, while certainly important and deserving of attention, are beyond the scope of this update. Download this article
Posted: November 16, 2007
Role of Regulation in Minimizing Terrorist Threats Against the Food Supply: Information, Incentives, and Penalties
Michael T. Roberts
Attorney at Law
Measuring the effectiveness of the government's response to the threat of food terrorism is not easy. Much has been written about the role of government regulation in reducing health risks. Rather than devise a regulatory construct specifically to address the threat of food terrorism, this article evaluates the government's efforts, within the existing regulatory construct, to minimize the risk of food terrorism by focusing on the effectiveness of the government's use of three regulatory tools: information, incentives, and penalties. This article concludes that there are inherent limitations and weaknesses of the food regulatory system. Download this article.
Posted: August 2, 2007
Approaching Liability with Animal Identification
Eric Pendergrass
Attorney at Law
This article addresses prominent legal liability issues associated with the development and implementation of the National Animal Identification System (NAIS). In particular, the article addresses legal issues associated with warranties theory and several states' approaches to limiting producers' potential liability under the warranties theory. The article also focuses on strict liability and negligence theories in the NAIS context. Download this article.
Posted: July 12, 2007
Governments and Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?
Terence J. Centner
Professor, College of Agricultural and Environmental Sciences
University of Georgia
State anti-nuisance laws, known as right-to-farm laws, burden neighboring property owners with nuisances. The purpose of the laws is to protect existing investments by offering an affirmative defense. Activities that are not a nuisance when commenced cannot become a nuisance due to changes in land uses by neighbors. While most state laws involve a lawful exercise of the state's police powers, a right-to-farm law may set forth protection against nuisances that is so great that it operates to effect a regulatory taking. Judicial rulings that two Iowa right-to-farm laws went too far in reducing neighbors' constitutionally protected rights augur an opportunity to rethink right-to-farm laws. Rather than relying upon a marketplace economy to protect businesses, a law based upon an economy of nature may be drafted to protect farmland and other natural resources. Download this article.
Posted: May 23, 2007
Federal Legislative History: A Guide to Resources
Sally J. Kelley
Librarian and Research Professor
National Agricultural Law Center
This guide covers the major types of publications in a federal legislative history. Under each type (committee reports, hearings, Congressional Record, documents, prints, Presidential signing statements), the first section lists full-text resources and their dates of coverage with links to electronic sources. The second section lists aids for identifying bibliographic information to assist in locating items in the full-text sources or for use in obtaining them through interlibrary loan or other means. Download this guide.
Update posted: October 14, 2008
A Comparison of International Animal Identification Programs
Eric Pendergrass
Graduate Assistant
National Agricultural Law Center
As with many international issues that are addressed by the countries individually instead of on a global basis, the animal identification programs and their application varies widely between nations. This article discusses the programs that have been implemented by certain countries. Within this discussion, issues are addressed when information was available, including a brief history of the program, its stated purpose, how the program addresses producer liability and confidentiality, and who bears the cost burden of the program's implementation. Download this article.
Posted: April 23, 2007
Clarifying NPDES Requirements for Concentrated Animal Feeding Operations
Terence J. Centner
Professor of Agriculture and Applied Economics
University of Georgia
The Clean Water Act of 1972 sought to restore and maintain the chemical, physical, and biological integrity of our nation's waters. Central to achieving the Act's goals was a permitting system prohibiting discharges of pollutants from point sources into navigable waters except as authorized by a National Pollution Discharge Elimination System (NPDES) permit. Point sources are defined to include discernable, confined, and discrete conveyances including concentrated animal feeding operations (CAFOs). In the wake of an April 14, 2003 CAFO Rule issued by the Environmental Protection Agency and litigation over that rule in Waterkeeper Alliance, Inc. v. Environmental Protection Agency, there exists some uncertainty regarding the NPDES requirements for CAFOs. This article discusses these requirements and clarifies what the NPDES permit requirements are for CAFOs. Download this article.
Posted: March 22, 2007
Varying State Approaches to Confidentiality with Premises and Animal Identification Systems
Eric Pendergrass
Graduate Assistant
National Agricultural Law Center
A major issue surrounding the National Animal Identification System is whether the information gathered under the system will be confidential. This article explores how different states have addressed this issue in state law as categorized in three different approaches: (1) Non-acting; (2) Reliance on current law; and (3) Passage of specific exemptions. Download this article.
Posted: January 4, 2007
State Identification Statutes: Confidentiality Provisions Relating to Animal and Premises Identification
Eric Pendergrass
Graduate Assistant
National Agricultural Law Center
This publication provides a table of state statutory citations for state laws that involve the National Animal Identification System. In Particular, the table includes cites regarding premises identification, animal identification, and confidentiality. Download this article.
Posted: January 4, 2007
Developments in Administrative Law and Regulatory Practice,
2005-2006 -- Agriculture
Harrison M. Pittman
Research Assistant Professor of Law and Co-Director
National Agricultural Law Center
This article examines several important agriculture-related judicial, administrative, and legislative developments that occurred during 2005 and 2006. In particular, the article discusses three important decisions issued by the Ninth Circuit, including Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States, which was initially triggered by the May 20, 2003 discovery of a cow in Alberta, Canada infected with Bovine Spongiform Encephalopathy (BSE). The article also examines two Federal Circuit decisions that involved challenges associated with statutory amendments to the peanut quota program under the Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill. The article also highlights several important administrative developments, including regulatory amendments to the National Organic Program that occurred in response to the First Circuit's decision in Harvey v. Veneman and the issuance by the Environmental Protection Agency of a proposed rule that involves concentrated animal feeding operations. Download this article
Posted: November 15, 2006
Animal Identification and the Next Farm Bill
Doug O'Brien
Research Assistant Professor and Interim Co-Director
National Agricultural Law Center, University of Arkansas School of Law
Staff Attorney, Drake University Agricultural Law Center
A somewhat nontraditional area that Congress may address in the next Farm Bill is animal identification. The effort to create a national animal identification program received a considerable push in late 2003 after a cow in Washington State was diagnosed with bovine spongiform encephalitis. Since that time, USDA, state animal health officials, and private industry have begun to implement the National Animal Identification System (NAIS). This article looks first at how the NAIS is designed and then at some federal and state laws that affect the NAIS. It then examines federal legislation that has been proposed to amend the NAIS and concludes by highlighting some of the issues that might arise during the farm bill debate. Download this article
Posted: October 26, 2006
Bankruptcy Reform and Family Farmers: Correcting the Disposable Income Problem
Susan A. Schneider
Assistant Professor of Law and Director
Graduate Program in Agricultural Law
University of Arkansas School of Law
This article focuses on the last amendment to the Bankruptcy Abuse Prevention and Consumer Protection Act—the assessment of disposable income. It is an amendment that has not been widely reported, nor does it appear to have been the subject of significant congressional debate. It is set forth in one very short section of the bill, but it reverses over a decade of misinterpretation of the plain language of the original Chapter 12 disposable income requirement. It is a significant change that promises to enhance the likelihood of successful family farm reorganizations throughout the country. Download this article
Posted: September 19, 2006
Summary of the WTO Interim Report in EC-Biotech
Alison Peck
Graduate Assistant
National Agricultural Law Center
This article summarizes the Interim Report of the Dispute Settlement Panel of the World Trade Organization ("WTO") in the matter of Europe Communities – Measures Affecting the Approval and Marketing of Biotech Products ("EC – Biotech"). The Report was released confidentially to the parties on February 7, 2006, but Friends of the Earth-Europe published a leaked copy on its website. According to news reports, the Appellate Body adopted the Report as its final ruling on May 10, 2006. Download this article
Posted: September 19, 2006
Biofuels: Policy and Business Organization Issues
Doug O'Brien
Research Assistant Professor of Law, Senior Staff Attorney
University of Arkansas National Agricultural Law Center
Staff Attorney, Drake University Agricultural Law Center
The burgeoning renewable fuels industry has the potential to radically reshape production agriculture, and farmers have an important role to play in this movement. Whether as producers of renewable feedstock, investors in renewable fuel plants or consumers of the renewable fuels, farmers have a direct interest in how the sector develops. The renewable fuel boom has implications across the agricultural sector – from the land use choices such as the possibility that Conservation Reserve Program acres will be drawn into use for renewable energy to the livestock sector that will need to compete for feedstuffs. The focus of this article is on some of the direct policy and legal issues advisors should think about in considering how to advise those who want to participate in the renewable energy industry. A snapshot of the sector will be given, followed by a description of some of the most significant federal renewable energy policies. The article will then focus on direct legal issues, in particular some business organization issues. Download this article
Posted: September 6, 2006
Planting the Seeds for a New Industry in Arkansas: Agritourism
Harrison M. Pittman
Research Assistant Professor of Law and Staff Attorney
National Agricultural Law Center
University of Arkansas School of Law
Agritourism operations exist in every state, and in many states, organizations, state officials, citizens, and others have undertaken some type of effort to enhance agritourism. Several states have undertaken some type of agritourism promotion effort, including Alabama, Mississippi, Missouri, Utah, North Carolina, Kansas, Oklahoma, and New Mexico. The types of efforts and the degree to which they are undertaken in these and other states vary substantially. A small but growing number of states– including Tennessee, Kentucky, Indiana, Kansas, and Vermont– have undertaken comprehensive efforts to not only promote agritourism but to recognize agritourism as an industry that can provide significant economic benefits to producers, communities, and states. Arkansas and many other states have not yet undertaken a similar effort, though these states possess the human, land, government, organizational, and academic resources to do so. This article provides a context from which producers, state officials, private organizations, citizens, and other relevant stakeholders in Arkansas and other states can initiate a discussion regarding the potential development of a program to promote an agritourism industry. Download this article
Posted: August 10, 2006
2005 Environmental Law Update
Theodore A. Fetishans
Extension Specialist and Lecturer
North Carolina State University
This article examines several significant developments from 2005 regarding the application of environmental laws to agricultural production and processing. The article discusses, among other items, air quality concerns related to animal feeding operations, water use issues, and recent developments under the Clean Water Act related to National Pollution Discharge Elimination System permits. In addition, the article examines developments regarding wetlands protection, eminent domain and takings, concentrated animal feeding operations, and the application of pesticides to surface waters Download this article
Posted: July 17, 2006
2005 Commercial Law Update
Keith G. Meyer
The Hampton Professor of Law
University of Kansas
As of July 1, 2001, all fifty states adopted Revised Article 9 of the Uniform Commercial Code, the first major revision of Article 9 since 1972. In most states, Revised Article 9 became effective on July 1, 2001, ushering in a host of changes to the areas of commercial and secured transactions law. For agriculture, these changes are especially important and present a wealth of pitfalls for even the experienced practitioner. This update provides a discussion of the changes brought by Revised Article 9 and the new law's application to commercial and secured transactions in the agricultural context. Download this article
Posted: June 26, 2006
From the Farm to the Factory: An Overview of the American and
European Approaches to Regulation of the Beef Industry
Crisaria S. Houston
Visiting Instructor, Thurgood Marshall School of Law
Texas Southern University
The United States and Europe have the Herculean task of regulating cattle and beef production in each of their many states and countries, respectively, and many factors must be covered in their regulatory schemes. This article briefly describes the existing regulatory requirements under the U.S. and European systems and compares the two approaches. In comparing the two systems, attention is concentrated on the quality of legislative drafting, the likelihood of implementation, the adequacy of consumer protection, the voluntary or compulsory nature of the measures, and the requirement of records retention. Download this article
Posted: June 23, 2006
Is a Picture Worth More Than 1,000 Words? The Fourth Amendment
and the FDA's Authority to Take Photographs Under the Federal
Food, Drug, and Cosmetic Act
Neal D. Fortin
Attorney at Law
Okemos, Michigan
The Food and Drug Administration (FDA) touches the lives of nearly every American every day. Yearly, the FDA regulates over $1 trillion worth of products, which accounts for nearly twenty-five cents of every dollar spent by American consumers. Consequently, the FDA's regulatory authority provides a rich arena for legal commentary, one of which is the FDA's authority to take photographs under the Federal Food, Drug, and Cosmetic Act, long an area of controversy in the food and drug field. Two currents roil beneath the surface of this issue: the Fourth Amendment right against unreasonable searches and the scope of the FDA authority to inspect under FDCA. Yet, a recent literature search revealed a solitary law review article addressing the issue. To fill the gap, this article analyzes the FDA's authority to take photographs during regulatory inspections. It reviews the FDA's regulatory authority to conduct establishment inspections and discusses the FDA's administrative policy and the case law on the scope of the FDA's authority to take photographs during administrative inspections. In addition, this article argues that the lack of express authority to take photographs does not equate with the lack of legal clarity. Download this article
Posted: June 23, 2006
European Union Food Law Update - II
Nicole Coutrelis
Attorney at Law, Coutrelis & Associates
Brussels, Belgium and Paris, France
The purpose of this update is to present the main events that have taken place in the food law sector in the European Union (E.U.). This update concentrates on fundamental topics and focuses on food and thus excludes from its scope questions regarding the management of agricultural products (Common Agricultural Policy, or CAP). The update is divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this article
Posted: June 23, 2006
United States Food Law Update - II
Michael T. Roberts
Research Professor of Law and
Director, National Agricultural Law Center
University of Arkansas School of Law
This update summarizes significant changes and developments in food law over the first half of 2000 and provides a starting point for scholars, practitioners, food scientists, and policymakers to better understand the shaping of food law in modern society. Tracing the development of food law through these updates also builds an important historical context for the overall development of food law. New developments in state law, while certainly important and deserving of attention, are beyond the scope of this update. Download this article
Posted: June 23, 2006
Who Gets the Check: Determining When Federal Farm Program
Payments Are
Property of the Estate
Susan A. Schneider
Associate Professor of Law
Director, Graduate Program in Agricultural Law
University of Arkansas
This article addresses the sometimes arcane intersection of farm programs and bankruptcy by confronting the fundamental question: When is the federal farm program payment property of the bankruptcy estate? The article begins by identifying some of the most important characteristics of the wide array of federal farm programs necessary to form the framework for the legal analysis. It then addresses the property of the estate inquiry, meshing existing precedent with commentary and specifically examining the recent circuit court options on this issue in the context of disaster relief. Based on this analysis, the article concludes with comments regarding future decision making and new farm programs Download this article
Posted: June 5, 2006
State Regulation of Production Contracts
Alison Peck
National Agricultural Law Center Graduate Assistant
Increasingly, agricultural production in the U.S. occurs through production contracts – agreements through which producers (or “growers”) and contractors (typically agricultural commodity processors) detail an arrangement for raising agricultural commodities. These agreements, like most commercial contracts, are subject to state regulation. As agricultural production contracts have become more common, several states have enacted legislation directly regulating production contracts and the process of creating them. This article collects and briefly analyzes existing state laws– from Arkansas, Georgia, Illinois, Iowa, Kansas, Minnesota, and Wisconsin – that directly regulate production contracts. Download this article
Posted: May 25, 2006
Are You a Debt Relief Agency? You Might Be Surprised and
You Should Be Concerned
Susan A. Schneider
Associate Professor and Director, Graduate Program in Agricultural Law
University of Arkansas School of Law
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was signed into law on April 20, 2005 as Public Law No.109-8. Most provisions of the bill were not immediately effective but rather took effect with respect to cases filed on or after October 17, 2005. This massive new act makes profound changes in bankruptcy law, some of which are controversial. The requirements regarding “debt relief agencies” provide an example of a particularly controversial change that has generated concern among the bar. The definition of this term by the new act is expansive, and if a person or entity falls within the term, violating the act’s requirements can result in serious consequences. This article provides an overview of the definition of a debt relief agency and the requirements now in place for such entities. It also discusses challenges to the requirements that have been brought in the courts. Download this article
Posted: May 25, 2006
World Trade Organization and the Commodity Title of the Next
Farm Bill: A Practitioner's View
Doug O'Brien
Senior Staff Attorney
National Agricultural Law Center and
Drake Agricultural Law Center
Traditionally, the major factors affecting the changes in a farm bill are the state of the farm economy, the condition of the federal budget, and who is in power in Congress at the time of the bill’s consideration. To be sure, all of these factors will again play a major role in the next farm bill. But an influence that has many times provided background context to farm bill deliberations is now up front and squarely facing policy makers: current and future trade policy. The impact of the Brazil Cotton Case has shifted current trade policy in a way that may force domestic policy to change. Further, the debate surrounding the next farm bill could very well coincide with the negotiations for the next major multi-lateral agricultural trade agreement, known as the World Trade Organization Doha Round. The timing both highlights and heightens the new significance that United States’ trade obligations have on domestic policy. This article examines how this new factor might influence Congress’ farm bill debate. Download this article
Posted: April 26, 2006
Federal Regulation of Organic Food: A Research Guide for Legal
Practitioners and
Food Industry Professionals
Stephanie Jillian
Covington and Burling
Washington, DC
This guide explores methods and resources for researching the federal regulation of organic food following the passage of the Organic Foods Production Act of 1990. This guide focuses on the current state of federal law and not on the pre-1990 history of organic food regulation, or on state regulation. There are countless resources available, including government documents, online electronic files, books, trade journals, government and non-government sponsored websites, agricultural search engines, and commercial databases. This guide examines these and other resources, providing the reader with a clear roadmap for approaching research on this topic.
Posted January 25, 2006
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The Farmer's Legal Guide to Producer Marketing Associations
Doug O'Brien, Staff Attorney
National Agricultural Law Center and
Drake University Agricultural Law Center
Neil D. Hamilton, Director
Drake University Agricultural Law Center
Robert Luedeman, Attorney
Des Moines, Iowa
In an effort to pool resources and access markets, many producers are reexamining a tried and true business strategy -- joining together to market their products. Producers from all realms of agriculture can utilize this strategy, whether it is a small group of market vegetable growers determining how to supply a farmers' market or a larger group of producers considering building a processing facility for their hogs. This publication looks at some of the issues raised when farmers decide to work together. The book is focused on legal issues, yet it also looks at some of the business fundamentals and marketing issues farmers need to think about as they approach a producer marketing association. The following list of chapters indicates topics covered in the book.
Posted January 24, 2005
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Managing Carbon in a World Economy: The Role of American Agriculture
Kelly Connelly Garry
University of South Dakota School of Law
Climatic change is one of the most challenging environmental concerns faced by the world. Carbon sequestration offers an optimistic approach to curb the effects of climatic change until a more permanent solution is discovered and implemented. Presently, carbon sequestration is the most practical response to global warming. It has been known for decades that carbon sequestration can assist in decreasing the amount of carbon dioxide in the atmosphere, but the difficulty lies with the incorporation of carbon sequestration into programs that will encourage sufficient participation to make it worthwhile. This article outlines the role American agriculture can play in managing carbon in a world economy. Download this article
Posted: November 12, 2005
Do European Union Non-Tariff Barriers Create Economic
Nuisances in the United States?
Thomas P. Redick
Principal, Global Environmental Ethics Council
and
Michael J. Adrian
Associate, Gallop, Johnson & Neuman, Clayton, MO
On April 18, 2004, the European Union’s Directives on Traceability and Labeling went into effect, imposing in effect a "zero tolerance" standard for biotech crops that have not received regulatory approval from the E.U. The Directives will also lead to genetic testing of shipments of United States commodities exports. This article overviews the European Union's complex regulatory policy regarding biotech crops, the United States' reaction to the new laws, and reviews case law on "nationwide nuisance" class action lawsuits. This article also reviews the tools proposed for preventing liability and examines E.U. policies on biotech crops and human health in the United States, the E.U., and their trading partners. Download this article
Posted: August 26, 2005
An Introduction to Chapter 12 Bankruptcy:
Restructuring the Family Farm
Susan A. Schneider
Associate Professor and Director, Graduate Program in Agricultural Law
University of Arkansas School of Law
Chapter 12 bankruptcy is a special section of the Bankruptcy Code that provides for the restructuring of the debts of a family farm or family fisherman’s business. It provides powerful tools to debtors, sometimes enabling them to reduce their debts or restructure their payments so that they can continue farming or fishing as their livelihood. Chapter 12 was first created in October 1986 and was recently made permanent by The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the 2005 Bankruptcy Act). Chapter 12 has been an important tool for farmers in financial distress, both as a bankruptcy option and as a base line for negotiations outside of bankruptcy. This article provides an overview of Chapter 12 as amended by the 2005 Bankruptcy Act. Download this article
Posted: October 25, 2005
Bankruptcy Reform: Changes to Chapter 12 - Adjustment of Debts for a Family Farmer
Susan A. Schneider
Associate Professor of Law
Director, Graduate Program in Agricultural Law
University of Arkansas School of Law
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 became law on April 20, 2005. While much of the new law is directed toward consumer bankruptcy reform, it also includes a number of important changes to Chapter 12 of the Bankruptcy Code. This article discusses these changes. Download this article
Posted: September 14, 2005
Revising Seed Purity Laws to Account for the Adventitious Presence of Genetically Modified Varieties: A First Step Towards Coexistence
A. Bryan Endres
Assistant Professor of Agricultural Law
University of Illinois
Adoption of genetically modified seed varieties in the United States, Canada, and South America continues to expand, with GM crops comprising almost 70 million hectares and over 93 percent of the total biotech cropland worldwide. As an increasing number of farmers plant GM varieties, the potential for adventitious mixture of genetically modified DNA with products produced via organic and conventional (non-GM) methods also increases. This article examines the critical role played by federal and state seed purity laws in the achievement of coexistence in the United States and the preservation of commodity agricultural exports to the European Union. It concludes that existing domestic seed laws should be revised to account for the widespread adoption of GM varieties. Download this article
Posted: Sept. 14, 2005
Liability of Federal Agencies for Failure to Abide by the Rural Development Act
Steve Sheppard
Associate Professor of Law
and
Allen Mazzanti
Juris Doctor, 2005
University of Arkansas School of Law
The poorest areas of the United States are almost entirely among its rural counties. Despite some recovery of its economy in some sectors, many aspects of rural life in the United States continue to decline. The number of farmers has fallen. Even though some population has returned to rural areas after fifty years of decline, the number of children in rural areas continues to fall, leaving rural areas with a disproportionally high population of the aged. Moreover, the dominant form of federal assistance to rural areas, $15 billion in annual farm supports and agricultural subsidies, is under pressure from the federal budget as well as under attack in the World Trade Organization. It is apparent that a need for federal support of rural areas persists, and yet the expensive habit of direct payments to farmers is both increasingly difficult and, as it has perhaps always been, less efficient as a means of rural development than other approaches. There is an obvious need for a means for the federal government to encourage rural development, if possible, in a manner that both provides long-term stability for rural communities while at the same time requiring less from the federal budget. A tool to do exactly this has languished in the United States Code for thirty-five years: the Rural Development Act (RDA). This article first considers the structure of the RDA and the scope of its application to "rural areas." It then considers agency attempts and failures to conform to it, as reported by the General Services Administration. Lastly, the article considers means for states and others whose interests are harmed by agencies that fail to conform to the RDA to enforce the Act under the Administrative Procedures Act. Download this article
Posted: Sept. 14, 2005
Bankruptcy Reform and Family Farmers
Susan A. Schneider
Associate Professor, University of Arkansas School of Law
Director, Graduate Program in Agricultural Law
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 passed the Senate on March 10; it passed the House of Representatives on April 11; and it was signed by the President on April 20, 2005, marking the conclusion of almost a decade of contentious debate. Most provisions of the bill will not be effective for six months from enactment. Much of the new law is directed toward consumer bankruptcy reform, and some of the most controversial aspects of it, e.g., means testing for Chapter 7 relief, have been reported widely in the media. The important aspects of the law that will directly affect farmers, however, have received little attention. The main provisions affecting farmers are summarized in this article. Download this article
Posted: August 30, 2005
European Union Food Law Update
Nicole Coutrelis
Attorney at Law
Coutrelis & Associes, Brussels, Belgium and Paris, France
The purpose of this update is to present the main events that have taken place each six months in the food law sector in the European Union. This presentation will cover June through December 2004, but is not exhaustive. This update will not include detailed discussions of regulations, such as authorizations of new additives for animal feed or registrations of new geographic names. Instead, it will concentrate on fundamental topics and focus on food, which excludes from our scope questions regarding the management of agricultural products. The update will be divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this article
Posted: August 26, 2005
United States Food Law Update
Michael T. Roberts
Research Associate Professor of Law and Director, National Agricultural Law Center
and
Margie Alsbrook
Founding Editor-in-Chief, Journal of Food Law & Policy
The one constancy about food law in the United States is change, especially in a rapidly-changing food industry. Innovations in food technology, shifts in popular culture and tastes, concerns of safety and nutrition, pressures from international markets, all contribute to the changing landscape of food law. These changes are reflected in new federal statutes, regulations, administrative decisions, and judicial decisions. This update summarizes significant changes and developments in food law over the last half of 2004 in order to provide a starting point for scholars, practitioners, scientists, and policy-makers determined to understand the shaping of food law in modern society. Download this article
Posted: August 26, 2005
Market Concentration, Horizontal Consolidation, and Vertical Integration in the Hog and Cattle Industries: Taking Stock of the Road Ahead
Harrison M. Pittman
Research Assistant Professor of Law
National Agricultural Law Center
The level of market concentration in virtually every segment of the agricultural sector in the United States has increased significantly over the past several decades. The number of firms and actors within the sector, including producers, input suppliers, output processors, and food retailers, has decreased as their size has increased. The hog and cattle industries are two portions of the agricultural sector that have been the focus of recent litigation due to market concentration concerns brought about by horizontal consolidation and vertical integration. The Packers and Stockyards Act of 1921 (PSA) and anti-corporate farming laws, both of which have been the basis of recent judicial activity, are two legal mechanisms implicated in the debate over market concentration in the hog and cattle industries. This article reviews the status of the PSA and corporate farming laws in light of the decisions in London v. Fieldale Farms, Corp., Pickett v. Tyson Fresh Meats, Inc., South Dakota Farm Bureau, Inc. v. Hazeltine, and Smithfield Foods, Inc. v. Miller. The article also examines the historical development and current structure of the hog and cattle industries and presents a brief overview of the PSA and corporate farming laws. Download this article
Posted: August 14, 2005
Hedge to Arrive Contracts: Futures or Forwards
Jayashree B. Gokhalé
Senior Attorney, Office of Disciplinary Affairs
National Association of Securities Dealers, Inc.
Although the Commodity Futures Modernization Act of 2000 (CFMA) reformulated the Commodity Exchange Act (CEA), Congress chose to preserve the distinctions between agricultural commodities and all others, leaving the pre-CFMA provisions largely intact. This means that the pre-CFMA statutes and case law interpreting them continue to apply with full force to transactions involving agricultural commodities, and the agricultural markets seem therefore to have escaped the statutory modernization brought by the CFMA to the financial derivatives markets. Since the middle 1990s, transactions involving Hedge to Arrive Contracts (HTAs) between producers and grain merchants have sparked controversy as well as litigation. The central question arising with respect to HTA transactions is whether they are futures contracts to which the CEA applies, or whether they are excluded from the CEA as forward contracts. This article addresses this question by examining the case law surrounding HTA contracts and the CFTC's treatment of HTAs, focusing on the analysis used to categorize HTAs as futures or forward contracts.
Download this article
Posted: April 21, 2005
Supreme Court Considers Preemption of State Law Claims Under the Federal Insecticide, Fungicide, and Rodenticide Act
Harrison M. Pittman
Staff Attorney
National Agricultural Law Center
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the use and distribution of pesticides through comprehensive labeling and registration requirements. FIFRA provides the federal government wide latitude to regulate pesticides but authorizes states to play a role as well. In particular, FIFRA provides that "[a] State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter." It also provides that "[s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. The issue arises as to whether state common law tort claims are preempted by FIFRA because the claims impose requirements "in addition to or different" from those imposed by the Environmental Protection Agency, the federal agency responsible for implementing FIFRA. This article discusses FIFRA, the evolution of courts' views regarding FIFRA preemption of state law tort claims, and two recent federal circuit court decisions, one of which the United States Supreme Court has agreed to review. Download this article
Posted: April 19, 2005
Legal and Policy Considerations of Investor-Friendly Cooperatives
Doug O'Brien
Staff Attorney
National Agricultural Law Center and
Drake Agricultural Law Center
Farmers and rural communities have looked to the cooperative model for over 150 years as an organizing principle for decision making, profit sharing, and education. As the economic environment has changed, coops have evolved in attempts to meet competition and fulfill their members' needs. In recent years a new model has emerged that has become known as the Minnesota model. Minnesota authorized this new type of coop in 2003, with Wyoming and Tennessee adopting similar measures and about 12 other states considering legislation. This article examines some of the traditional cooperative principles and how state policy makers have manifested those principles by enacting laws allowing for the incorporation of cooperatives. It then discusses some of the evolving demands on cooperatives and how policy makers have responded, specifically with the enactment of the Minnesota statute that creates investment coops and the consideration of a uniform law that will create investment coops. Finally, the article examines how these new coops will be treated under certain federal statutes, such as the Capper-Volsted Act, the Securities Exchange Act, the Internal Revenue Code and the Farm Credit Act. Download this article
Posted: Jan. 27, 2005
Developments in Horizontal Consolidation and Vertical Integration
Doug O'Brien
Staff Attorney
National Agricultural Law Center and
Drake Agricultural Law Center
The likely continued increase in agricultural consolidation and vertical integration, as well as a number of important decisions that will soon be handed down, ensure that the areas of antitrust and trade practice regulation will continue to be an important facet of agricultural policy. As it has in the past, the enforcement and interpretation of these laws will continue to play a crucial role in how the different agricultural sectors evolve. This article explores some of the recent developments, both in the industry and in the courts, that affect horizontal consolidation and vertical integration in agriculture. Download this article
Posted: Jan. 19, 2005
Fact Sheet on Animal Identification: Liability Exposure
and Risk Management
Michael T. Roberts
Director
Doug O'Brien
Senior Staff Attorney
National Agricultural Law Center
As the livestock industry considers implementation of the National Animal Identification System (NAIS), one of the chief concerns focuses on the possibility of increased liability for livestock producers. This concern arises from the recognition that a key component of a lawsuit is knowing who caused the harm. The fear is that the NAIS will allow people to find out who owned an animal at the time that the animal acquired the condition that caused the harm. Download this article
Posted: Jan. 03, 2005
Fact Sheet on Animal Identification: Confidentiality of Information
Michael T. Roberts
Director
Doug O'Brien
Senior Staff Attorney
National Agricultural Law Center
Some livestock producers and livestock industry participants have raised concerns about who will be able to access the information provided to the National Animal Identification System (NAIS). Their concerns include: 1) that establishing a centralized database might allow others in the industry to know information about their operations; 2) government agencies may access the data; and 3) people who have designs in harming animal agriculture might acccess the information. Download this article
Posted: August 26, 2005
Farmers' Guide to GMOs
David R. Moeller
Farmers' Legal Action Group, Inc.
Michael Sligh
Rural Advancement Foundation International - USA
For nearly a decade, US farmers have commercially grown genetically modified organisms, or GMOs. Whether farmers grow GMOs or conventional seeds or are certified organic, the use of GMOs in commercial agriculture will affect their operations. This guide sets out recent statistics on the commercial production of genetically modified crops, discusses the regulation of GMOs by three federal agencies, looks at the obligations and legal limitations farmers assume when they sign GMO contracts, analyzes farmers' right to save seed in light of recent U.S. and Canadian cases, provides information on steps farmers should consider taking if they are accused of violating a seed patent, addresses issues of potential liability for farmers from GMO contamination, discusses some of the current international issues related to GMOs, and summarizes recent research on the cost and benefits of GMOs. Also included are a list of resources and a reproduction of the legal sections from Monsanto's 2005 Technology Agreement. Download this article
Posted: Jan. 4, 2005
Anatomy of the Government's Role in the Recall of
Unsafe Food Products
Michael T. Roberts
Director
The National AgLaw Center
The government does not have the authority to mandate a recall of unsafe food. Recalls of unsafe food products are voluntarily conducted by food companies and are monitored by either the Food and Drug Administration (FDA) or the United States Department of Agriculture (USDA) through its branch agency, the Food Safety and Inspection Service (FSIS). In a typical food recall, the recalling company and the government agency work together to evaluate the product and risk and to recover that product. This article describes the government's role in this voluntary food recall system. This article first explains the need for an effective recall system to protect consumers from foodborne illnesses. Next, this article describes the unique dual-government agency responsibility for food recall, the basis for the "voluntary" food recall, and the government's specific responsibilities and roles in the voluntary food recall system. Download this article.
Posted: Nov. 22, 2004
Rabobank Offer to Purchase FCS of America
Doug O'Brien
Senior Staff Attorney
The National AgLaw Center
This article considers the legal facets of the Farm Credit Services of America resolution to terminate its status as a Farm Credit System Institution so that it could become a wholly owned subsidiary of Rabobank. Specifically, the article examines the possibility of approval of such a termination application by the Farm Credit Administration and the stockholders of Farm Credit Services of America. Download this article.
Posted: Oct. 18, 2004
Determining the Proper "Cramdown" Rate of Interest in Agricultural
Bankruptcies Post-Till v. SCS Credit Corp.
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
On October 2, 1998, Lee and Amy Till purchased a used vehicle from Instant Auto Finance in Kokomo, Indiana. Little did they know that the events of that day would evolve into legal battles before a bankruptcy court, a federal district court, a circuit court of appeal, and the United States Supreme Court. Nor could they have known that those events would culminate in a legal precedent that helped resolve one of the most significant issues in Chapter 11, 12, and 13 bankruptcies: how to calculate the appropriate "cramdown" interest rate. In Till v. SCS Credit Corp., the United States Supreme Court held in a plurality decision that the so-called "formula approach" is the appropriate method for determining the adequate rate of interest in a Chapter 13 cramdown. The "formula approach" requires that the prime national interest rate serve as a baseline for determining the appropriate cramdown interest rate and that the rate be adjusted, if necessary, based on the risk of nonpayment. Download this article.
Posted: Oct. 18, 2004
Concentration Concerns in the American Livestock Sector:
Another Look at the Packers and Stockyards Act
Jon Lauck
Attorney and Professor of History
South Dakota State University
In the early years of the twentieth century, the American meatpacking industry was often criticized for engaging in anticompetitive behavior. As one early report of the United States Senate concluded, "[i]t has been demonstrated beyond question that the history of the development of this industry has been the history of one effort after another to set up monopoly." Such concerns prompted Congress to adopt the Packers and Stockyards Act in 1921. A civil action in which a federal jury found the meatpacking company Tyson-IBP guilty of depressing the price of cattle and highlights the importance of these concerns and the need for a more comprehensive understanding of the P&SA. This article outlines the general changes in the hog and cattle markets that have prompted concerns about competition, discusses concerns regarding the effectiveness of the Packers and Stockyards Administration as an enforcement agency, addresses concerns about the more general antitrust statutes, and sets forth the general history surrounding passage of the P&SA. Download this article.
Posted: Oct. 18, 2004
The Constitutionality of Partition Fence
Statutes in the Midwest
James L. Molloy
Associate Professor of Business Law
University of Wisconsin-Whitewater
Linda A. Reid
Assistant Professor of Business Law
University of Wisconsin-Whitewater
Partition fence statutes are applicable only in rural areas where, historically, land was used primarily for the purpose of raising livestock or crops. This article surveys the partition fence statutes currently in place in the Midwest where, over time, the use of rural property has evolved from exclusively agricultural to more often residential. This article further explores the current constitutionality of those statutory schemes in light of the changed nature of rural land use since their enactment. Download this article.
Posted: Aug. 12, 2004
The War on GMO's: A Report from the Front
John S. Harbison
Staff Attorney
The National AgLaw Center
In April 2004, the Vermont legislature became the first in the nation to require manufacturers of genetically modified seeds to label and register their products. The proponents of this statute narrowly missed passing a companion bill that would have imposed liability for economic losses caused by genetic contamination on seed manufacturers, rather than neighboring farmers who grow genetically modified plants in their fields. In March 2004, the residents of Mendocino County, California, went even further by enacting an outright ban on genetically modified plants. Following Mendocino County's lead, voters in a dozen other California counties are considering initiatives that would ban genetically modified crops. This article does not explore the pros and cons of GMOs. That debate is already lengthy--and barbed--and it is likely to continue for a while. Rather, this article analyzes the Mendocino County ban and the Vermont labeling and registration statute with respect to their constitutionality. Sponsors of both measures anticipate legal challenges. In fact, the biotechnology industry has hinted strongly that these challenges will arrive soon. And, quite clearly, both measures raise interesting issues under two related constitutional law doctrines: the dormant commerce clause and the concept of federal preemption. Because Mendocino County Measure H and Vermont H. 352 are so different in effect, analysis of their respective constitutionality, or lack of it, especially under the dormant commerce clause, is going to be very different too. Accordingly, Part A of this article provides an introduction to these related constitutional doctrines. Part B briefly sets forth the principal concerns of GMO opponents. Part C explores the application of the dormant commerce clause to the Mendocino County ban and the Vermont labeling and registration statute. Part D explores the application of the doctrine of federal preemption to these same measures. Download this article.
Posted: Aug. 6, 2004
Commercial Laws in the United States of America
Relating to Bailments
Drew L. Kershen
Earl Sneed Centennial Professor of Law
Univeristy of Oklahoma College of Law
This article provides an introduction to the law of bailment with an emphasis on commercial bailments. While this article has tried to provide the reader with a solid understanding of bailment law, it has not attempted to provide a detailed exposition of every legal issue that has arisen. More significantly, this article has not attempted to provide a discussion of the many cases that have addressed specific bailment law issues. At times the footnotes cite case decisions, but the article focuses on the statutory provisions of state and federal laws relating to bailment. Download this article.
Posted: Aug. 4, 2004
Statutory Exhaustion of Administrative Remedies in
Actions Against the USDA
Christopher R. Kelley
National AgLaw Center Faculty Advisor
Associate Professor, University of Arkansas School of Law
The exhaustion of administrative remedies doctrine requires those who claim that an agency's action is unlawful to exhaust any administrative remedies as a precondition to judicial relief. The doctrine is a venerable one, having originated in the federal common law as a prudential rule of judicial administration. It seeks to ensure that agencies retain the primary responsibility for administering the programs that Congress has placed within their purview and to promote judicial efficiency. In other words, "[t]he exhaustion doctrine . . . acknowledges the commonsense notion of dispute resolution that an agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court." This traditional, court-created exhaustion doctrine has exceptions. For example, exhaustion is not required when the administrative remedy is inadequate or pursuing it would be futile. In general, these and the other exceptions reflect the judiciary's balancing of the affected individual's need for immediate judicial relief against the institutional needs for agency autonomy and judicial efficiency. Download this article.
Posted: June 24, 2004
Attorney's Fee Awards for Unreasonable Government
Conduct: Notes on EAJA
Christopher R. Kelley
National AgLaw Center Faculty Advisor
Associate Professor, University of Arkansas School of Law
The "American Rule" of attorney's fees ordinarily requires each party to pay its own fees in the absence of express statutory authority to the contrary. When one of the parties is the federal government this rule is bolstered by the government's sovereign immunity. In about 200 statutes Congress has clearly put aside the American Rule and waived the federal government's sovereign immunity to permit the award of attorney's fees to prevailing parties other than the federal government. Unlike many of these statutes, the Equal Access to Justice Act (EAJA) is not attached to any particular substantive cause of action. Instead, subject to its exceptions and limitations, the EAJA operates as a broad waiver of the federal government's sovereign immunity from awards of attorney's fees in non-tort civil proceedings. Near the end of its 2003-3004 Term, the United States Supreme Court in Scarborough v. Principi again resolved a question of interpretation of the EAJA, one that had divided several circuits. In light of this decision, now may be an opportune time to re-acquaint readers with the most basic features of EAJA. This article intends to do just that. Download this article.
Posted: June 24, 2004
The Constitutionality of Corporate Farming Laws
In the Eighth Circuit
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
Several states have enacted statutory or constitutional provisions that limit the power of corporations to engage in farming or agriculture, or to acquire, purchase, or otherwise obtain land that is used or usable for agricultural production. Such legal provisions are commonly referred to as corporate farming laws. Most corporate farming laws are enacted as statutes rather than constitutional amendments. Proponents of corporate farming laws argue that these laws are necessary to protect family farms from the negative economic consequences of competition with corporate-owned or corporate-operated agricultural operations. Opponents of corporate farming laws argue that these laws are unconstitutional and an impediment to a vibrant free trade economy among the states. Download this article.
Posted: June 14, 2004
Jack and the Beanstalk: Property Rights in
Genetically Modified Plants
Nathan A. Busch
Attorney at Law
The conversion of domesticated plant species into transgenic plants and their subsequent utilization in the agricultural production of usable crops has created a tension between the farmer, the seed manufacturer, and the public. The farmer desires to save the progeny transgenic seeds from one planting cycle for use in the next and to be autonomous in his decisions regarding the utilization of his land, his financial resources, and his crop. The seed manufacturer desires to make a profit from the transgenic plant. The public desires that the food and fiber produced by the transgenic plants be safe for consumption. While all of these positions are equally valid, discussions among these three parties usually fall into a quagmire of often emotional and irrational arguments. The theory upon which this article is founded is that each of the parties is merely articulating, sometimes without eloquence, a position derived from the property rights fundamental to each party. Through examination of the property rights of each of the parties, a path to the resolution of the tension will be illuminated. This article aims to examine the farmer's and seed manufacturers' property rights in genetically modified plants, leaving the public property rights for the time being. The story of Jack and the Beanstalk1 provides a useful allegory and sets the stage for this discussion. Download this article.
Posted: May 27, 2004
Zoning Limitations and Opportunities for Farm Enterprise
Diversification:Searching for New Meaning in Old Definitions
Robert Andrew Branan
Executive Director
North Carolina Farm Transition Network
Advocates of small farm viability are increasingly proposing market-driven state and local policy initiatives to counter the loss of farms at the urban edge due to rising land and input prices, falling commodity prices, and an overall deterioration of the rural infrastructure that has until recent decades supported the agricultural economy of rural communities. This is largely due to the low political priority in the agricultural sector of regulatory-based programs designed to stem farm loss. At the core of these initiatives is the provision of legal, financial, technical, and moral support and protection to direct farm marketing and other production diversification efforts such as direct niche marketing (e.g. organic produce or grass-fed beef), farmers' markets, farm stands, and on-farm retail operations and recreational experiences. A common theme of these economic development efforts is the encouragement of local governments to exercise their zoning powers with increasing flexibility and restraint as they review a farm's - and in aggregate a farm community's - applications to diversify or otherwise change the nature of its traditional operation to take advantage of the economic opportunities offered by growing urban markets. In the quest for new avenues to farm profitability, however, the ends may not justify the means when facing local zoning authorities. Download this article.
Posted: May 7, 2004
A Legal Guide to the National Organic Program
Harrison M. Pittman
Staff Attorney
The National AgLawCenter
Congress enacted the Organic Foods Production Act ("OFPA") of 1990 to create "national standards governing the marketing of certain agricultural products as organically produced products," assure consumers that "organically produced products meet a consistent standard," and facilitate "interstate commerce in fresh and processed food that is organically produced." OFPA requires the USDA Secretary to establish national standards for organic production and handling consistent with OFPA. On December 21, 2000, the USDA published a final rule that created these national standards. The combination of OFPA and the final rule created the National Organic Program ("NOP"). As of October 21, 2002, for a "producer" or "handler" to sell, label, or represent agricultural products as "organic," that producer or handler must comply with all applicable requirements set forth in the OFPA and the final rule. This article discusses the NOP by examining the OFPA, the NOP final rule, and prefatory comments to that final rule. Download this article.
Posted: Mar. 10, 2004
Biodiversity and the Law of Nature Conservation in Great Britain
John S. Harbison
Staff Attorney
The National AgLawCenter
The British have a well-deserved reputation for their love of birds and for being avid birdwatchers. Indeed, the Royal Society for the Protection of Birds, with more than one million members, is probably the most influential conservation organization in the country. So it is not surprising that the editors of THE ECONOMIST, the leading weekly newsmagazine in Great Britain, recently lamented drastically declining numbers of British farmland birds. The magazine reported, for example, that corn bunting numbers are down by 41%, grey partridges by 18%, skylarks (established favourite of English poets) by 14%, and yellowhammers by 13% in just the last decade. These declines are attributed to a single change in British farming practices: sowing grain and rapeseed in the autumn and winter rather than the spring. The result is less grain lying in farmers' fields for birds to eat and consequently fewer birds. What may be surprising is THE ECONOMIST'S suggestion for fixing this problem. The magazine, with a longstanding and global disdain for government subsidies, especially in agriculture, suggests that the only remedy is to pay British farmers "to let more fields and field margins lie fallow" in the fall. That recommendation, in a nutshell, is a main topic of this article. Download this article.
Posted Mar. 9, 2004
Biodiversity and Law: The Culture of Agriculture and
the Nature of Nature Conservation
John S. Harbison
Staff Attorney
The National AgLawCenter
About nine thousand years ago, beneath the Karacadag Mountains of southeastern Turkey, a small group of people, over a short period of time, made the most momentous and consequential revolution in human history. They triggered the evolution of agriculture. Every subsequent step along the road of human civilization is based on that moment. It has been called "the most important advance that mankind has ever made since it developed the powers of speech, conscious thought and firemaking" and "the worst mistake in the history of the human race." Opinions differ. Agriculture involves the intentional modification of ecosystems so that they produce plants and animals that would not occur naturally in either the same form or quantity. Agriculture has given us the food surpluses that have permitted the florescence of human culture but also the destruction of forests, the exhaustion, erosion and salinization of soils, the eutrophication and poisoning of lakes and streams, and the drainage of wetlands. It has caused the extinction of species and has contributed to their diversity. In our times we are witnesses to the fifth great episode of extinction in the 600-million-year history of life on earth and the first in which humanity is the primary agent. This article-the first in a forthcoming series-is about the strengths and weaknesses of current approaches to the conservation of biodiversity in the developed world-or at least in a significant part of it-from the perspective of law and policy. By contrasting efforts in Great Britain and the United States to deal with biodiversity loss, lessons to be learned from these countries' quite different approaches will be identified, beginning some premises that do not require extensive elaboration. Download this article.
Posted Feb. 12, 2004.
Nuisance Immunity Provided by Iowa's Right-To-Farm Statute:
A Taking Without Just Compensation?
Stephanie L. Dzur
Attorney at Law
To preserve farmlands, agricultural protection laws, commonly known as right-to-farm, have been enacted in all fifty states. The right-to-farm laws seek to adjust legal rights between competing property interests by protecting agriculture from nuisance claims and isone way in which the important public policy of preserving land for agricultural uses is effectuated. As the United States Supreme Court has recently become more protective of private property rights, the Constitution has emerged as a new weapon to strike at right-to-farm laws. In Bormann v. Board of Supervisors, the Iowa Supreme Court held that an Iowa statute giving immunity from nuisance suits to farming activities in areas designated as agricultural areas violated the Takings Clause of the Iowa and United States Constitutions. This article examines how the Iowa court arrived at its determination. It will discuss how the property right subject to the takings analysis is defined and whether the Bormann court was correct in characterizing the nuisance immunity as a per se taking of property without just compensation. Download this article.
Posted: Feb. 12, 2004
Legal Issues in Developing a National Plan for Animal Identification
Michael T. Roberts, Director
Harrison M. Pittman, Staff Attorney
The National Agricultural Law Center
The recent discovery in the United States of bovine spongiform encephalopathy, commonly referred to as mad cow disease, has accelerated efforts to implement a national identification program for animals. This is no easy task, as funding, logistical, and legal concerns need to be resolved. This article briefly reviews the efforts to develop a national animal identification program and frames the legal issues raised by some producers to such a program. Download this article.
Posted: Feb. 4, 2004
Perishable Agricultural Commodities Act Round-Up:
A Review of Recent Cases
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
The Perishable Agricultural Commodities Act ("PACA")was enacted in 1934 "for the purpose of regulating the interstate business of shipping and handling perishable agricultural commodities such as fresh fruit and vegetables" and to "provide a practical remedy to small farmers and growers . . . vulnerable to sharp practices of financially irresponsible and unscrupulous brokers in perishable agricultural commodities." George Steinberg & Son, Inc. v. Butz; Chidsey v. Geurin. PACA is important legislation for individuals and entities involved in the buying and selling of perishable agricultural commodities. Numerous legal issues arise in court actions brought pursuant to PACA. These issues include whether lending institutions are required to disgorge funds they receive from a buyer of perishable agricultural commodities, whether a produce supplier holds a valid claim to the assets of a PACA statutory trust, whether a produce buyer's or seller's conduct violates certain PACA requirements, and whether the officers and directors of a corporation that purchased perishable agricultural commodities could be held personally liable for the corporation's failure to pay the produce seller. Litigation dealing with these issues and others are addressed in this article, which summarizes significant cases brought pursuant to PACA that were issued between January 1, 2002, and June 1, 2003. Download this article.
Posted Dec. 10, 2003
Agricultural Zoning, Bankruptcy, and the Rural Homestead
Robert Laurence
Robert A. Leflar Distinguished Professor of Law
University of Arkansas School of Law
Suburban sprawl meets farmland preservation: much has been written about this phenomenon, both in the popular press and in the scholarly journals. In this article, I will discuss one very small part of the problem. Suppose that in reaction to fears of suburban sprawl, a county imposes an agricultural zoning regime that, among other things, prohibits the division of land into too-small parcels in order to protect its agricultural use and rural character. Suppose that a married couple, deeply in debt, live in such a county, on a farm of 350 acres subject to a zoning restriction prohibiting the division of the property into lots smaller than eighty acres. And suppose further that the laws of the debtors' state protect their homestead from creditors, irrespective of value but only up to forty acres. The question is how should a court - state or federal bankruptcy - react to this situation? How much of the 350 acres should be sheltered from creditors? And what about the zoning restriction that would not seem to allow the creation of a forty-acre free-standing homestead for the debtors? Download this article.
Posted: Aug. 18, 2003.
An Overview of the Packers and Stockyards Act
Christopher R. Kelley
Associate Professor of Law
University of Arkansas School of Law
This article offers an overview of the structure and basic provisions of the Packers and Stockyards Act. It begins with brief accounts of the Act's history and of the industries the Act regulates. It then describes the manner in which the Act regulates those subject to it--packers, swine contractors, stockyard owners, market agencies, dealers, and live poultry dealers. It concludes with a description of a recently enacted statute that, while not a part of the Packers and Stockyards Act, will apply to some within the sectors that the Act regulates. Download this article
Posted: Aug. 11, 2003
USDA's National Appeals Division Procedures and Practice
Karen R. Krub
Farmers' Legal Action Group, Inc.
The USDA National Appeals Division (NAD) was created by the Secretary of Agriculture in 1994 pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994. The NAD is the USDA's administrative appeal authority for resolving disputes arising between program participants and several USDA agencies, including the Farm Service Agency, the Natural Resources Conservation Service, the Risk Management Agency, the Rural Business-Cooperative Service, the Rural Housing Service, and the Rural Development agency. This Research Article provides a step-by-step guide to the NAD appeal process. Download this article.
Posted: May 23, 2003
Direct Payments and Counter-Cyclical Payments Under the 2002 Farm Bill: An Overview
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
The Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill, was enacted on May 13, 2002. It governs federal domestic commodity programs for the next six years and significantly alters previous legislation pertaining to domestic commodity programs. Under the 2002 Farm Bill, farm income support for wheat, corn, grain sorghum, barley, oats, upland cotton, rice, soybeans, and other oilseeds is provided through three programs: (1) direct payments, (2) counter-cyclical payments, (3) and loan deficiency payments and marketing loan gains. The 2002 Farm Bill significantly modifies the peanut payment program by changing it from a two-tier price support program based on nonrecourse loans to a payment program comprised of direct, counter-cyclical, and marketing loan provisions. This article discusses the direct payment and counter-cyclical payment programs for wheat, corn, grain sorghum, barley, oats, upland cotton, rice, soybeans, other oilseeds, and peanuts. Download this article.
Posted: May 6, 2003.
Recreational Use of Private Lands: Associated Legal
Issues and Concerns
Roger A. McEowen
Associate Professor of Agricultural Economics & Extension Specialist
Kansas State University, Manhattan
Recreational activities on private lands have increased in recent years due to the inability of public lands to meet demand. The prospect of monetary gain and the liability protection provided by state law for recreational activities on private land provide other incentives for the increased the use of farm and ranch land for recreational activities. The key questions for those wishing to operate fee-based recreational activities on rural land are potential liability exposure to participants, the extent to which state law provides liability protection, and whether additional steps are necessary to insulate against liability claims. Download this article.
Posted: May 5, 2003.
Should Potential Long-Term Health Care Needs Be a
Part of Your Farm Estate Plan?
Roger A. McEowen
Associate Professor of Agricultural Economics & Extension Specialist
Kansas State University, Manhattan
Long-term health care is becoming an important issue for an increasing number of people. Not only are people living longer than at any time in the past, the cost of long-term care continues to rise. Before 1980, the median age of the population in the United States was 30; estimates are that by 2010 the median age will be 37 - the present median age of Floridians. The fastest growing portion of the population is those over age 65 and, of that group, the segment consisting of those over the age of 85 is growing the fastest. As people grow older, they tend to have more health problems, with some people requiring long-term health care. Consequently, one of the most pressing problems facing a significant portion of the elderly is the cost of long-term health care. 1997 data from the American Health Care Association indicates that the average American male can expect to spend $56,895 on long-term care and the average woman $124,370. Download this article.
Posted: May 5, 2003.
Proper Handling of Disaster Payments, Crop Insurance and
Livestock Sold On Account of Weather
Roger A.McEowen
Associate Professor of Agricultural Economics & Extension Specialist
Kansas State University, Manhattan
In 2002, adverse weather conditions caused crop and livestock losses in many parts of the country. The western United States was hit particularly hard. This article explores several income tax rules that are designed to soften the blow by allowing preferential treatment of gains and losses realized as a result of weather-related conditions. Download this article.
Posted May 5, 2003.
Governmental Oversight of Animal Feeding Operations
Terence J. Centner
Professor of Agricultural & Applied Economics
University of Georgia
Changes in animal production in the United States at animal feeding operations (AFOs) have been accompanied by concerns about those operations' waste byproducts and production practices. With the marked expansion of concentrated animal feeding operations (CAFOs) and the problems associated with large numbers of animals in confined areas, a number of issues have attracted the attention of the public. This article provides an overview of several production and environmental issues associated with concentrated animal production. It provides information on conditions that have created public dissatisfaction with existing regulatory efforts and then addresses the issue of water contamination, commencing with an analysis of the evidence cited in justification of the new federal water quality regulations. This article also looks at the voluntary efforts employed by producers to control environmental problems and new federal regulations involving mandatory controls for some producers. It then considers the administration and enforcement of CAFO regulations, noting that the enforcement of existing regulations might obviate the need for additional controls. Download this article.
Posted Apr. 8, 2003.
The USDA National Appeals Division: An Outline of the
Rules of Procedure
Christopher R. Kelley
Associate Professor of Law
University of Arkansas School of Law
The USDA National Appeals Division (USDA NAD) was created by the Secretary of Agriculture in 1994 pursuant to the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994. On December 29, 1995, the USDA NAD Rules of Procedure were published in the Federal Register as interim final rules. These rules remained in interim final form until June 23, 1999, when they were amended and published as final rules. They appear in the Code of Federal Regulations at 7 C.F.R. Part 11. This outline reviews these rules. Download this article.
Posted: April 1, 2003.
The Conservation Security Program and the Grassland Reserve Program Under the 2002 Farm Bill
Harrison M. Pittman
Staff Attorney
The National Agricultural Law Center
The Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill, created two new conservation programs, the Conservation Security Program ("CSP") and the Grassland Reserve Program ("GRP"). The GRP and the CSP represent significant additions to the conservation programs available to farmers and ranchers. Because the regulations implementing the GRP and the CSP have not been issued, this summary covers only the statutory provisions for each program. Download this article.
Posted: Apr. 1, 2003.
The Perishable Agricultural Commodities Act: The Statutory Trust and Its Application to Restaurants
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
In 1930, Congress enacted the Perishable Agricultural Commodities Act ("PACA") "for the purpose of regulating the interstate business of shipping and handling perishable agricultural commodities such as fresh fruit and vegetables." The primary purpose of the PACA is to "provide a practical remedy to small farmers and growers who [are] vulnerable to sharp practices of financially irresponsible and unscrupulous brokers in perishable agricultural commodities." In 1984, Congress amended the PACA to include a statutory trust for the benefit of unpaid sellers of perishable agricultural commodities. For nearly seventy years it was widely believed that the PACA did not apply to restaurants and restaurant chains. This article briefly discusses the PACA's applicability and the types of conduct it prohibits. It also examines the statutory trust provisions, how the statutory trust operates, and to whom the trust generally applies. Finally, this article analyzes and discusses the cases that have held that restaurants can be subject to the PACA and therefore its statutory trust provisions. Download this article.
Posted: Jan. 21, 2003.
J.E.M. Ag Supply v. Pioneer Hi-Bred International: Its Meaning and Significance for the Agricultural Community
Michael T. Roberts
Shareholder
Van Cott, Bagley, Cornwall & McCarthy
On December 10, 2001, the United States Supreme Court in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. ("J.E.M."), held that utility patents may be issued for plants under the Utility Patent Act despite distinct protections available under the Plant Variety Protection Act and the Plant Patent Act. J.E.M. was the first United States Supreme Court decision in two decades to rule on the eligibility for patenting under the Utility Patent Act, and the Court's decision was closely followed by, and has important implications for, the agricultural community. This article addresses the meaning and significance of J.E.M. to the agricultural sector. It outlines the factual, procedural and legal background of the dispute in J.E.M. and explains the rationale and scope of the Supreme Court's decision. The implications of the decision for the agricultural community, including agricultural biotechnology companies, seed companies, and agricultural producers are addressed. The unique issues for utility patent applications under the Utility Patent Act are also explored. Download this article. Posted: Jan. 21, 2003.
Legal Liability Issues in Agricultural Biotechnology
Drew L. Kershen
Earl Sneed Centennial Professor of Law
University of Oklahoma
Legal liability in tort law should be contrasted with regulatory approval. Regulatory approval focuses on whether a particular transgenic crop, microorganism, or animal is safe to humans and the environment. Regulatory approval deals with whether and under what conditions agricultural biotechnology crops and animals may be produced, marketed, and used. By contrast, before or after regulatory approval, a particular transgenic plant, microorganism or animal could possibly cause damage to property, persons, markets, the environment, or to social structures. Legal liability in tort addresses the kinds of liability that may exist for these possible damages. Those who produce or use agricultural biotechnology products need to know about the legal standards by which they may be held accountable for damages. In addition, those who might potentially be damaged by agricultural biotechnology need to be aware of the kinds of claims that they might assert to establish legal liability against producers and users of this technology. Download this article.
Posted: Dec. 5, 2002.
Husband and Wife Farmers in Agricultural Bankruptcies:
The "Tools of the Trade" Exemption
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
This article examines the "tools of the trade" exemption as it applies to agricultural bankruptcies involving husband and wife farmers. The first part provides a general discussion of some of the issues that debtors and creditors must consider when claiming certain property as exempt from "property of the estate." This includes a brief discussion of what "property of the estate" means under the Bankruptcy Code, as well as the state and federal lien avoidance options available to a debtor. This article also provides a discussion of the "tools of the trade" exemption, including a brief examination of the "tools of the trade" exemptions available under state and federal law. Finally, this article analyzes the "tools of the trade" exemption as it applied in two recent agricultural bankruptcies involving husband and wife farmers: In re Lampe and In re Kieffer. Download this article.
Posted: Oct. 9, 2002.
Scope of the Federal Crop Insurance Arbitration Clause
Scott Fancher
Former AgLaw Center Graduate Fellow
Practicing Attorney, Harrison, Arkansas
Federal crop insurance is presently sold and serviced exclusively by private insurance companies under reinsurance agreements with the Federal Crop Insurance Corporation (FCIC). FCIC programs are administered by USDA's Risk Management Agency. Common to every current FCIC reinsured policy is a provision requiring arbitration of disagreements between the private insurer and the policyholder. This article examines the scope of the FCIC's arbitration clause and its implications for disputes between policyholders and their reinsured private providers. A separate appeals process applies to disputed FCIC determinations. Download this article.
Posted: Aug. 27, 2002.
How the Concept of Navigability May Determine the
Rights of Landowners Along Streams
J. W. Looney
Distinguished Professor of Law, Emeritus
University of Arkansas School of Law
This article provides an overview of how the varying definitions, interpretations, and concepts of navigability may be applied in determining the rights of landowners who own land along streams or land through which streams run. The article explores the historical development of the definition of a navigable stream and how the question of navigability can determine a landowner's rights to the stream bed. In addition, this article discusses the rights that members of the public may have to use a stream for recreational purposes and examines the question of whether a stream must be navigable before the government can implement regulatory controls. Download this article.
Posted: Aug. 27, 2002.
An Overview of Organizational and Ownership Options Available to Agricultural Enterprises, Parts I & II
Carol R. Goforth
Professor
University of Arkansas School of Law
This two-part article provides an overview of most of the organizational choices available to persons interested in owning and operating an agricultural enterprise. Part I addresses sole proprietorships, general partnerships, limited liability partnerships, limited partnerships, and limited liability partnerships. Part II covers limited liability companies, corporations, and cooperatives.
Download Part I of this article.
Download Part II of this article.
Posted: Aug. 5, 2002.
Farmers' Markets Rules, Regulations and Opportunities
Neil D. Hamilton
Professor, Drake University Law School
Director, Agricultural Law Center
This study examines the structure and operation of farmers' markets in the United States, giving special attention to the legal and regulatory issues that may shape their operation. By looking at the rules and regulations markets use and by considering issues markets experience, it is possible to identify the most important challenges vendors and managers of markets may face. The goal of this article is to provide a resource that will be valuable for farmers considering a farmers' market, to vendors now selling at farmers' markets, to the organizers and managers who run markets, and to those thinking about creating new markets. Download this article.
Posted: July 31, 2002.
Statutory Agricultural Liens Under Revised Article 9 of the Uniform Commercial Code
Susan A. Schneider
Associate Professor and Director
Graduate Program in Agricultural Law
University of Arkansas School of Law
It has been said that Revised Article 9 of the Uniform Commercial Code was designed to bring greater certainty to financing transactions, thus reducing the overall cost of credit. This broad goal is to be accomplished by expanding the scope of Article 9 and clarifying the rules governing security interests. One specific example of this expansion is the inclusion of agricultural statutory liens, including agricultural landlord's liens, within Revised Article 9. Download this article.
Posted: July 31, 2002.
FCIC's Standard Reinsurance Agreement
Scott Fancher
Attorney
Harrison, Arkansas
Crop insurance is becoming increasingly popular with farmers as a risk management tool. The Agricultural Risk Protection Act of 2000 (ARPA) is evidence that it also enjoys broad support in Congress. ARPA significantly expanded the scope of the crop insurance program and made participation more attractive and likely by substantially increasing the share of the premiums paid by the government. It follows that there now exists an increased opportunity for disputes involving federal crop insurance. Crop insurance can be confusing for anyone unfamiliar with its mechanics, owing to the federal governments' involvement in its promotion and delivery. That involvement imposes obligations on both the government and the private crop insurance providers. Farmers and their attorneys can benefit from a fundamental understanding of the roles and responsibilities of the different stakeholders in our federal crop insurance system. Download this article.
Posted: July 24, 2002.
The Enforcement of Money Judgments Across
Indian Reservation Boundaries
Robert Laurence
Professor
University of Arkansas School of Law
In the rural areas of the American West, many conflicts arise that must be settled in either tribal or state court. As with judgments everywhere, some are not paid voluntarily, and the judgment creditor must use coercive enforcement to collect the debt. When the judgment is enforceable against property that lies within the jurisdiction that issued the judgment, then that jurisdiction's body of enforcement law must be used. But when enforcement must be sought in another jurisdiction, complicated problems of cross-boundary comity and respect arise. When one of the jurisdictions is a tribal court and one is a state court, the issues become complex and involve an intricate mix of tribal, state and federal law. The purpose of this article is to introduce those unfamiliar with the field of American Indian law to this mix and to the various and conflicting approaches that courts and commentators have taken to the problem, with special attention given to problems that might affect the farming community. Download this article.
Posted: July 24, 2002.
An Introduction to the Federal Securities Laws As They Might Apply to Agricultural Operations
Carol R. Goforth
Professor
University of Arkansas School of Law
This article provides an overview of some of the ways in which federal law might impact the sale of "securities" by those in an agricultural enterprise. Because securities law is a relatively specialized area of the law, even general practitioners who are quite capable of providing legal advice and assistance on other matters may wish to have a general reference guide to the kinds of securities issues that might be raised by their agricultural clients. Because this article may be used by both laypersons and lawyers, the material is designed to be understood by anyone; the footnotes contain specific legal citations, explanations, and additional references more appropriate to those with legal training. Download this article.
Posted: July 24, 2004.
Dealing with the USDA: Federal Administrative Law Basics
Christopher R. Kelley
Associate Professor of Law
University of Arkansas School of Law
"Administrative law is not for sissies."
Antonin Scalia, Judicial Deference to Administrative Interpretations of Law
This article offers insight into dealing with the United States Department of Agriculture (USDA) by introducing and explaining some of the most basic principles of federal administrative law. The USDA, like all federal agencies, was created by Congress. Because federal administrative agencies are created by Congress, the "cardinal rule number one of administrative law" is that "the legislature creates agencies and sets limits on their authority." Thus, a federal agency's authority is both granted and limited by Congress. Download this article.
Posted: July 24, 2002.
Introduction to Federal Farm Program Payment Limitation
and Payment Eligibility Law
Christopher R. Kelley
Associate Professor of Law
University of Arkansas School of Law
This article provides an overview of the federal farm program payment limitation and payment eligibility rules. These rules are a cornerstone of the federal domestic commodity programs for they apply to most programs, including the most economically significant programs. In conjunction with the eligibility requirements specific to each program, these rules define who is eligible for program payments and set the payment limits. The rules discussed in this article are those in effect as of June 15, 2002. Included are the statutory changes made by the 2002 Farm Bill, the Farm Security and Rural Development Act of 2002. The regulations implementing the changes made by the 2002 Farm Bill, however, are not included because they had not been promulgated as of the date of this article. Download this article.
Posted: July 24, 2002.