Anthony B. Schutz’s research while affiliated with University of Nebraska–Lincoln and other places

This Article discusses how farms and ranches can adapt to meet consumer demand for outdoor activities like hunting, wildlife viewing, hiking, or simply enjoying the solace of spending time in rural places. These places hold breathtaking landscapes, but they are often privately owned, relatively inaccessible to the general public, and have not been managed to produce the ecosystem services that support these activities, despite strong evidence of consumer demand. Historically, farms and ranches have been managed for a single dominant use, undertaken wholly upon an individual’s landholdings. Entering the emerging market for nature-based experiences requires that farms and ranches adapt from fragmented single-use businesses to multi-functional enterprises that cooperatively operate at larger spatial scales.This Article explains how lawyers can help farmers and ranchers make such a move. It uses existing private law and Ostrom's principles of collective action to illustrate how these communities should be designed. It also offers some preliminary thoughts on possible areas for legal reform that would facilitate the development of these enterprises.It also explores the relationships these enterprises have with the emerging local-food movement. As with traditional producers, the multi-functionality these institutions bring to individual farmers can be used as a diversification strategy for local-food producers. The income from these activities, in turn, helps stem the environmental consequences of using land for food production. In addition, the communities that may emerge within the foodshed and those that may emerge to support nature-based entrepreneurship are complimentary. Each may foster, and profit from, the sort of communitarian thinking that is necessary to the other, resulting in a more multi-functional and sustainable rural landscape.

In the United States, today’s ranches are engaging in small-scale nature-based endeavors to diversify their income base. But the geographic boundary of the land they own creates a relatively small area within which to operate, and fragmented ownership diminishes the ability of any single landowner to produce nature-based income. Collective action among nearby landowners can produce a set of resources from which all members of the group can profit. Such action can enhance the economic, social, and environmental sustainability of grasslands and the populations that use them. This article shows that common-interest communities can be used to provide and allocate wildlife and other resources on ranchlands, enabling individual landowners to generate more income from selling nature-based experiences to customers. Common-interest communities are familiar in urban settings but they have not yet been used in this setting. Thus, the article proposes a new approach to ranchland management based upon a familiar set of largely private legal arrangements. More broadly, the article illustrates the relevance of private law and private property to sustainable development by explaining how property owners can use private law to engage in environmentally beneficial and economically profitable enterprises on the vast privately owned landscape of the U.S. Great Plains.

Laws dealing with agriculture have provided a great deal of constitutional law. This article explores one more recent example. Corporate-farming laws are one hallmark of agricultural law. They regulate the use of limited-liability business forms for owning agricultural land, engaging in production agriculture, or both on approximately 312 million acres of farmland in nine states. That is approximately 77% of the land in those states and approximately one-third of all farmland in the United States. These regulations generally take the form of restricting the use of limited-liability to those producers that the legislature or electorate have deemed “real farmers” or “family farmers.” This article evaluates whether the “shadows cast by the congressional commerce power” prevent a state from defining farmers. Stated simply, can states give these farmers preferential access to the means of production without violating the dormant Commerce Clause ("DCC") doctrine?The challenge of conducting a rigorous study of both discriminatory-effects doctrine and corporate-farming laws is evident from the length of this article. It deals with a somewhat complex state-law restriction operating within a diverse agricultural industry, while at the same time evaluating that law under a notoriously complex body of unsettled doctrine that, at times, needs further development. And it does this in response to a particular court's disposition of the issue. But complexity is far from atypical in DCC challenges. So I've resisted the temptation to oversimplify the DCC doctrine and corporate-farming measures in favor of a thorough analysis of both. In the end, this exercise sheds a great deal of light in the shadows of Congress's power to regulate commerce and states' ability to provide favorable treatment to those that it deems farmers.

Corporate-farming laws represent a collective statement about what producers are best for production agriculture. This collective statement and its underlying rationales have been cast aside, or perhaps found wanting, in recent litigation under the Dormant Commerce Clause (DCC) doctrine. This Article explores the continued validity of corporate-farming restrictions after Jones v. Gale, a recent Eighth Circuit Court of Appeals decision striking down Nebraska’s restriction under the DCC doctrine. Elsewhere, I have explained why Jones was a difficult case and why corporate-farming measures may not be discriminatory for purposes of the DCC doctrine. Here, I take Jones at face value, and evaluate the balance of state corporate-farming laws for discrimination. In so doing, I provide a helpful synthesis of corporate-farming measures, which should allow policymakers to see how these laws differ from state to state. This should inform the necessity of amendments, provide some examples of amendments that may satisfy the DCC doctrine in the wake of Jones, and provide guidance to those interpreting and applying existing restrictions.While there are broader overviews of how corporate-farming measures resemble one another, no article as of this writing provides an analysis of the common traits of corporate-farming measures with the DCC doctrine’s concept of discrimination in mind. This is likely because every commentator to consider the question concluded that corporate-farming measures were not discriminatory under the DCC doctrine. Post-Jones, however, discrimination has placed these laws in serious question. In order to understand which laws might be discriminatory, a new look at how corporate-farming laws operate is necessary.This Article also uses Nebraska’s experience after Jones to provide an example of amendments that could bring a state’s corporate-farming measure into compliance with the DCC doctrine. The upside of engaging in these efforts is renewed attention to the various underlying rationales for corporate-farming restrictions. Nebraska’s experience also offers some short-term evidence of the sort of debate ensuing in the wake of Jones.