Summer Writing Updates

This week marks the end of a busy few weeks of writing. In addition to my regular Reason columns (including a recent one opposing Pres. Trump's outrageous food tariffs and another on state preemption of local food-and-beverage taxes), I've also got a piece on the USDA's proposed GMO-labeling regulations that will appear in an upcoming issue of the print magazine. In addition, Creators Syndicate recently ran an editorial that was centered on a column I'd written on Congress's consideration of the Farm Bill.

Last week, in my latest piece for the New Food Economy, I discussed how the Texas state health department has unreasonably and illegally misinterpreted the state's cottage food law to ban most types of pickles in the state. The article led to other media mentions, including an appearance this week on Texas Public Radio.

Yesterday, I turned in to the editors of the Loyola Consumer Law Review an article I'd been working on for several months that focuses on assessing consumer perceptions of class-action food litigation. The article, which follows my appearance as an invited panelist at the law review's spring symposium, is set to be published by the law review in the fall.

As always, stay tuned here for more news. And make sure to follow me on Twitter for the latest timely updates on my work.


My New Law-Review Article Tackles Federal, State, & Local Foraging Regulations

I'm thrilled to share news that my latest law-journal article is now available online. The article, Food Law Gone Wild: The Law of Foraging, is the first-ever law-review article to focus on foraging, which I define in the article as "the harvest of foods which are not cultivated by man but that grow spontaneously in the wild, regardless of whether the 'wild' is an urban, suburban, rural, or wilderness area." It's also the first comprehensive look at National Park Service regulations, state foraging laws, and municipal foraging rules.

The article appears in the new issue of the Fordham Urban Law Journal. I wrote the article in conjunction with my appearance last fall as a panelist at the law review's annual Cooper-Walsh Colloquium.

Here's an excerpt from the article:

[L]aws at all levels of government in America increasingly target foragers. In a few cases, these restrictions are smart policy. But many foraging rules at the federal, state, and local level are wrongheaded and draconian. In recent years, for example, an elderly Illinois man was fined for picking dandelion greens in a Chicago-area park. Another forager was fined for picking edible berries in a suburban Washington, D.C. park.

Laws pertaining to foraging reflect the ongoing tension between dueling policy goals. On the one hand, many people wish to protect and defend public and private ecosystems. On the other hand, many people long to spend time in nature and enjoy the fruits of those aforementioned ecosystems. Despite the growing number of regulatory issues pertaining to foraging, legal and other social science scholarship on this issue is virtually nonexistent.8 This lack of guidance is particularly problematic because foraging is increasingly popular and because federal, state, and local foraging rules vary wildly, and often conflict.

This Article seeks to address and eradicate this scholarly deficit. Part I provides a narrow definition of foraging, discusses American foraging demographics and the growing popularity of foraging, and describes the benefits of foraging and some potential risks. Part II provides a brief history of foraging traditions in the United States and discusses the factors behind the development of America’s anti- foraging laws. Part III provides a detailed look at current federal, state, and local anti-foraging laws in the United States, with a special focus on select state and local rules, regulations at all fifty-nine National Park Service National Park units, and caselaw. Part IV assesses the impacts of foraging rules and proposes foraging rules that cities, states, and the federal government should adopt. The Article concludes that the ancient and valued practice of foraging deserves legal primacy that protects both foragers and the lands upon which they choose to forage.

Read the entire article here

This is my second law-review article to be published this spring. My article on the field of Food Law & Policy, co-authored with Emily Broad Leib, was published recently by the Journal of Food Law & Policy. My other recent publications include an op-ed on federal regulation of animal slaughter and local food in The Hill and an op-ed in the Orange County Register on the U.S. Supreme Court's potential hearing of an appeal of California's foie gras ban.

My Latest Law-Review Article Explores Growth in Field of Food Law & Policy

I’m excited to report that my latest law-journal article has just been published in the Journal of Food Law & Policy (housed at the University of Arkansas Law School). In the article, which I co-authored with Harvard Law School’s Emily Broad Leib, we conclude that the legal field of Food Law & Policy has matured into a vital and vibrant field in the legal academy.

The article, Food Law & Policy: An Essential Part of Today’s Legal Academy, updates a seminal 2014 Wisconsin Law Review article on the field, Food Law & Policy: The Fertile Field’s Origins and First Decade, by me and Broad Leib. That article was the first to detail the fascinating origins and explosive growth of the field from its beginnings in the mid-2000s. In the new Journal of Food Law & Policy article, we present fresh data on the steady growth of the field since publication of our Wisconsin Law Review article.

Using the same ten criteria we developed to measure the growth of Food Law & Policy for the earlier article, the Journal of Food Law & Policy piece measures and details the field’s growth since that time. The field’s continued growth—along with its firm footing within the legal academy—is one of the new article’s key findings.

For example, in the 2014 article we determined that 20 of the top-100 law schools had offered Food Law & Policy courses. The new article identifies 34 such schools that have offered courses—including, in some cases, multiple course offerings. That’s a seventy-percent increase in just four years.

The new article also reveals several other equally compelling data points. For example, the 2014 article identified one dedicated Food Law & Policy clinic at a law school (led by Broad Leib), along with thirty clinics at twenty-three laws schools that had pursued one or more Food Law & Policy projects. The new article shows that four schools now boast dedicated Food Law & Policy clinics, and that nearly six-dozen clinics at four-dozen law schools have now worked on one or more Food Law & Policy projects.

Finally, while the 2014 article identified seven (of ten) areas of a legal field that Food Law & Policy had occupied, the new Journal of Food Law & Policy article demonstrates that Food Law & Policy now meets all ten such criteria. That's exciting growth for a legal field, particularly over a period of just a few short years.

For legal nerds only, here’s the cite: Emily Broad Leib & Baylen J. Linnekin, Food Law & Policy: An Essential Part of Today’s Legal Academy, 13 J. Food L. & Pol’y 228 (2018).

I Filed Brief for Reason, Cato Urging Supreme Court to Take Up California Foie Gras Ban

Last week, Reason Foundation (the nonprofit that publishes Reason, where I write a weekly food-law column) partnered with the Cato Institute to file an amicus curiae brief with the U.S. Supreme Court in support of the foie gras producers and sellers who are challenging California’s foie gras ban. I was honored to be asked to write and submit (as a member of the Supreme Court bar) the brief. In March, the plaintiffs asked the Supreme Court to take up their appeal after the Ninth Circuit Court of Appeals last fall reversed a U.S. District Court ruling that had struck down the ban.

The possible implications of a state animal-rights law that interferes with interstate and foreign commerce in animal products are already reverberating. Last year, in separate lawsuits, each brought by more than a dozen states, California and Massachusetts were sued over respective animal-rights laws in those states that similarly discriminate against interstate and foreign commerce.

Together, the California and Massachusetts laws target eggs, pork, and beef sales. If it seems as if a couple states can do widespread and lasting damage to livestock farmers, retailers, restaurateurs, consumers, and food freedom across the country, then that’s also the reality. That’s also what makes this foie gras case so important.

"This brief supports Reason's commitment to 'Free Minds and Free Markets,'" says Manny Klausner, a former editor of Reason, a Reason Foundation co-founder and board member, and attorney, who joined me in filing the brief. "And it's particularly satisfying for Reason to file a Supreme Court brief defending liberty that quotes Thomas Jefferson and James Madison's opposition to bans on various types of foods and liquors as 'lunacy' and 'despotic'—and also cites Escoffier, Julia Child, and Thomas Keller!"

I am proud to have had the opportunity to work with Reason Foundation and The Cato Institute and to lend my voice to the chorus urging the Supreme Court to take up this important case.

I'll Discuss My Book, Class-Action Food Lawsuits in Trio of Midwest Law-School Appearances Next Month

Fresh off a talk earlier this month at the University of Washington Law School, where I discussed my critically acclaimed book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, I’ll be spending several days on the road next month to speak at three of the Midwest’s best law schools.

On March 5, I’ll give a book talk at the University of Missouri Law School in Columbia. Later in the month, on March 28, I’ll give another book talk, this one at University of Michigan Law School in Ann Arbor. Both talks are sponsored by the law schools’ respective Federalist Society chapters.

In the middle of the month, on March 16, I’ll take part in what’s sure to be a fascinating symposium put on by the Loyola Consumer Law Review at Loyola University Law School in Chicago. The symposium, "A Classless Act: Have Class Actions Lost Their Effectiveness as a Consumer Protection Tool?", focuses on the abuse and diminishing effectiveness of class-action lawsuits.

I’ll sit on a mid-day panel, "Class Actions That Give Bad Names: A Look at What Some Call Frivolous Litigation," alongisde Loyola Law School Prof. Jim Morsch. My talk will focus on class-action litigation targeting food makers, including suits targeting Wrigley and Subway. Later on, I’ll contribute an article which expands on my remarks to the Consumer Law Review’s 2018 Symposium Issue.

I’m grateful for these invitations to speak to and with law students and faculty members next month!