Antitrust and Competition in America's Heartland

By Horton, Thomas J. | South Dakota Law Review, Fall 2013 | Go to article overview

Antitrust and Competition in America's Heartland


Horton, Thomas J., South Dakota Law Review


On behalf of the University of South Dakota School of Law, the South Dakota Law Review, and myself, I would like to welcome you to the annual Symposium issue of the Law Review. Each year, the South Dakota Law Review selects a topic based on timeliness, importance to legal scholarship, a lack of significant scholarship on the topic, and the importance of the topic to South Dakota and the region. This year, the chosen topic merges the worlds of antitrust law and agriculture, bringing together legal scholars and practitioners from both fields to discuss "Antitrust and Competition in America's Heartland."

An academic discussion on antitrust in agriculture and new approaches to antitrust could not happen at a better time. Farmers and ranchers throughout South Dakota and the rest of America's heartland increasingly are experiencing feelings of economic powerlessness. At the Symposium event, David Balto distributed a National Farmers Union handout showing that a farmer today receives only $0.18 for a loaf of bread that retails for $2.99; $2.00 for a pound of top sirloin steak that sells for $7.99; and $1.67 for a gallon of milk that sells for $4.12 at the grocery store. Bill Bullard similarly showed how by 2010, four firms had come to control 85% of America's meatpacking industry. One result has been a precipitous loss of independent livestock operators.

Seemingly responding to these pressures on farmers and ranchers, in 2010, the U.S. Department of Agriculture and the U.S. Department of Justice held five joint public workshops on agriculture and antitrust enforcement. (1) The two agencies set out to the heartland to listen to comments from stakeholders on competition in agriculture markets. Unfortunately, these public workshops did not lead to any firm changes in policy from the Department of Agriculture or the Department of Justice. One of the goals of this Symposium is to continue to push for reevaluation of antitrust law and policy, particularly in the area of agriculture.

The University of South Dakota School of Law is the perfect venue for such a symposium. South Dakota played a leading role in the progressive agricultural revolution in the late nineteenth century that led to the passage of the Sherman Act in 1890 and the Clayton and Federal Trade Commission Acts in 1914. Indeed, South Dakota passed its own state antitrust law during the first month of its statehood. (2)

Today, South Dakota's agricultural producers continue to contribute impressively to America's economy. According to the U.S. Department of Commerce, agriculture, forestry, fishing, and hunting collectively accounted for 10.88% of South Dakota's gross domestic product in 2011. (3) This amounts to $4.368 billion in annual economic activity. (4) Consequently, discussing antitrust and competition in agriculture and antitrust policy has significant implications for the well-being of South Dakotans and Midwesterners.

The importance and need for timely legal scholarship on the subject is illustrated by the quality of people we have been privileged to work with on the Symposium. In conjunction with this issue, a day of lectures was presented on March 15, 2013 at the School of Law.

The first panel was on Antitrust and Competition Issues in America's Heartland. I moderated the panel, which included David A. Balto, a public interest lawyer in Washington, D.C.; Bill Bullard, CEO of Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America; Peter C. Carstensen, Professor of Law at the University of Wisconsin Law School; and Dr. Diana Moss, Vice President and Director of the American Antitrust Institute. (5) Topics of discussion included the intersection of antitrust and intellectual property, especially with genetically modified crops, issues of market control and price manipulation by major agricultural firms and meatpackers, and the current state of antitrust law in relation to agriculture in America's heartland. …

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