Law Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Bowman V. Monsanto: A Bellwether For The Emerging Issue Of Patentable Self-Replicating Technologies And Inadvertent Infringement, Christopher M. Holman

Christopher M Holman

The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies, for example by denying patent rights to “second generation” self-replicating products, or even by broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, the courts and/or Congress have at their …

Demanding Supply: The Bioenergy Farm Lease’S Critical Role In Biomass Supply Chain Optimization, A. Bryan Endres, Elise C. Scott

A. Bryan Endres

As the bioenergy industry in the U.S. expands to meet increased demands for transportation fuel under the Renewable Fuel Standard and electrical power under state Renewable Portfolio Standards, farmers will seek the ability to grow dedicated, high-yielding energy crops of a perennial nature on leased property. Given the large amount of farmland in the U.S. that is leased, such contributions will represent a significant, though currently not well understood, portion of the biofuel industry supply chain. Through the use of contracts as governance schemes, the parties to a bioenergy farm lease can navigate three key areas of such a lease: …

Community Supported Agriculture And Community Labor: Constructing A New Model To Unite Volunteers And Employers, A. Bryan Endres, Rachel Armstrong

A. Bryan Endres

Community Supported Agriculture (CSA) is a farm philosophy and marketing strategy that creates a union between consumers and farmers. Extending beyond the traditional buyer-seller relationship, CSA farmers invite customers to participate in food production in a variety of scenarios the authors refer to as “community labor.” But community labor entails a serious paradox. Traditional employment law doctrine envisions autonomous competition between laborer and employer, and makes little room for these novel, community-based relationships. More importantly, rigid application of employment law structures undermines many of the values embedded in the CSA movement and may limit its continued viability and growth. Constructed …

An Argument For A Vicarious Liability Standard For Agricultural Employers And Associations For The Acts Of Contractee Farm Labor Contractors: An Addition To The Migrant And Seasonal Agricultural Worker’S Protection Act Of 1983, Andrew Leibfried

Andrew Leibfried

Much of the federal law that has been passed to protect seasonal and migrant agricultural workers has been circumvented by Agricultural Employers and Associations who contract out their labor, and thus, many of their obligations to Farm Labor Contractors. Because these Farm Labor Contractors are considered independent contractors, seasonal and migrant agricultural laborers are required to enforce their rights under federal law against these contractors who can be either transient or judgment proof, while the Agricultural Employer or Association who hired the contractor escapes liability entirely. The focus of this paper is to present the case for a different legal …

The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres

Jody M. Endres

Mounting resource scarcity confronts policymakers to make decisions based on predictions of complex system behavior under conditions of great uncertainty. Nowhere is this more evident than in bioenergy policy, which relies heavily on modeling to determine biofuels’ effects on complex climate, food and natural systems. This article provides a primer on models’ inner workings to facilitate engagement by the legal field so critical in building and applying models, and remedying them when they fail. Any conceptual model cannot predict future reality with accuracy absent accounting for regulatory and litigatory scenarios that only the legal discipline can assess fully. Administrative law …

Frayed Seams In The "Patchwork Quilt" Of American Federalism: An Empirical Analysis Of Invasive Plant Species Regulation, A. Bryan Endres, James S.N. Mccubbins, Lauren D. Quinn, Jacob N. Barney

A. Bryan Endres

Increased demand for biomass feedstocks to meet renewable energy mandates will require development of newer, bigger and better plant resources. Ideal biomass traits–fast growth and ability to outcompete local vegetation, prolific seed production, adaptability to a variety of soil and climatic conditions, and resistance to pests and diseases–also typify invasive flora. Next-generation biofuel feedstocks may be more productive and profitable at the individual farm level, but also may pose a greater risk of becoming invasive, thereby damaging the broader ecosystem and the economy. Accordingly, the agronomist’s search for yield maximizing biofuel crops for deployment into novel agricultural production systems and …

Building Bio-Based Supply Chains: Theoretical Perspectives On Innovative Contract Design, A. Bryan Endres, Jody M. Endres, Jeremy J. Stoller

A. Bryan Endres

By 2030, the United States will consume over 300 million tons of forest and agricultural feedstocks for energy production. The supply chain necessary to provide unprecedented quantities of new “bioenergy crops,” however, is fraught with uncertainty. The vertically integrated model the nascent sector currently uses may have limited opportunity for expansion to meet renewable energy mandates. A hybrid structure is likely to emerge as the industry evolves, in which end-users closely cooperate with a large number of heterogeneous producers through long-term contracting rather than as direct owners or operators of biomass farms. This “vertically coordinated” industry model is dependent on …

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Raising Cane: Cuban Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

Forging Towards Coexistence, Laurie J. Beyranevand

Laurie J Beyranevand

Abstract: For better or worse, the United States has demonstrated a long history of support for agricultural biotechnology. Justified as necessary to meet the growing demands of our nation’s food demand, federal policies addressing genetic engineering have attempted to balance of set of competing interests to ensure health and safety while also encouraging further innovation and development of technology. The unfortunate effects of these policies are suffered disproportionately by organic and non-GE farmers, as there has been little consideration of how the products of genetic engineering impact this sector. In the midst of regulating biotechnology, the federal government has lost …

Exhausted By Exhaustion? A Solution To The Seed Patent Problem, Katie M. Scholz

Katie M. Scholz

Strong intellectual property protection drives economies in both the developed and developing worlds. But, when the breadth of intellectual property rights stretches too far, the consequences ripple throughout society. Today, the United States comes down too strongly on the side of protecting intellectual property rights in genetically modified crops, consistently extending the rights of their creators against the iconic American farmer. The allowance of utility patents on self-replicating technology, and subsequent expansion of patent rights has created a host of problems from innocent infringers to reversal of tradition. This paper looks at the various international approaches to seed patent protection …

Necessity Is The Mother, But Protection May Not Be The Father Of Invention: The Limited Effect Of Intellectual Property Regimes On Agricultural Innovation, A. Bryan Endres, Carly E. Giffin

A. Bryan Endres

Standard innovation theory assumes that intellectual property protection is a prerequisite to the development of technological advances. Stretching back to the writing of the Constitution, a strong intellectual property system, comprised of both laws that establish intellectual property protection and a judicial or other adjudicative system to enforce the property right, has been considered necessary to stimulate innovation for the benefit of society. While not directly challenging this traditionally held belief, the authors used empirical data to test the assumption in the context of agriculture. This paper analyzed twenty years of agricultural production data from Argentina, Brazil, China, India, and …

When The Law Is Silent, Trespassers W… : Law And Power In Implied Property Rights, Ann Brower

Ann Brower

In the daftly magical world of Winnie the Pooh, Piglet lives in a house signposted “TRESPASSERS W.” The golden silence that follows the W allows Pooh and his friends to wonder about the sign’s meaning, which Piglet insists honors his grandfather, Trespassers William. Piglet’s grandfather aside, silence in the law allows competing interpretations to arise and flourish in the realms of rhetoric, narrative, power and politics. In this paper we combine interest group politics, political ecology, property theory, and narrative assertion to propose a theory of implied property rights – how they work, whom they benefit, and when and why …

Of Pigs, Plain Text, And Pyrrhic Victories: National Pork Producers Council V. United States Environmental Protection Agency, Christopher Ralph Brown Jd Mpa

Christopher Ralph Brown JD MPA

Any court charged with defining the scope of the Environmental Protection Agency’s (EPA’s) authority to enforce the Clean Water Act should do so in light of the Act’s ultimate purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” So much is certain in statutory construction: if one possible statutory construction serves to frustrate the purpose of the statute according to its own terms, one should go back to the drawing board. This article evaluates the legal reasoning of a recent decision by the United States Court of Appeals for the Fifth Circuit in light …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

Winters And Water Conservation: A Proposal To Halt “Water Laundering” In Tribal Negotiated Settlements In Favor Of Monetary Compensation, Jesse H. Alderman

Jesse H Alderman

In the century since the U.S. Supreme Court, in Winters v. United States, granted Indian tribes reserved water rights, few tribes have received the promised delivery of water, while at the same time, the Department of Interior—the same agency tasked with a fiduciary duty to hold all tribal assets in trust—constructed massive, multibillion-dollar water projects without cognizance of senior Indian rights. The water transformed much of the West, from arid desert to a green expanse of farmland and steel-and-mirrored urban centers with populations rivaling cities in the water-rich East. However, the rapacious pace of development has placed unsustainable strain on …

The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel

Jason M Stoffel

While the Clean Water Act, as it is currently structured, has few provisions that directly regulate nonpoint source pollution, the Ninth Circuit Court of Appeals, in the case Friends of Pinto Creek v. United States EPA, 504 F.3d 1007 (9th Cir. 2007), has recognized the Total Maximum Daily Load (TMDL) program as a tool that can be used by the EPA to indirectly compel states to regulate nonpoint source pollution in the nation’s impaired waters. In the context of the Ninth Circuit’s ruling, in 2010, the EPA made national headlines by pushing states to regulate nonpoint source pollution in the …

The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel

Jason M Stoffel

While the Clean Water Act, as it is currently structured, has few provisions that directly regulate nonpoint source pollution, the Ninth Circuit Court of Appeals, in the case Friends of Pinto Creek v. United States EPA, 504 F.3d 1007 (9th Cir. 2007), has recognized the Total Maximum Daily Load ("TMDL") program as a tool that can be used by the EPA to indirectly compel states to regulate nonpoint source pollution in the nation’s impaired waters. In the context of the Ninth Circuit’s ruling, in 2010, the EPA made national headlines by pushing states to regulate nonpoint source pollution in the …