With Congress these days in perpetual gridlock, any meaningful overhaul of Capper-Volstead appears improbable, Carstensen said. Instead, he sees hope with the courts and their continued strict construction in considering antitrust exemptions under the act.
Diana Moss, an economist who is vice president and director of the American Antitrust Institute, turned the focus to seed crops. She said the seed industry closely resembles the beef industry as described earlier by Bullard. Throw out 'meat' from Bill's presentation and substitute 'seed,' and you pretty much have my presentation, she joked.
Monsanto Co.'s pursuit of patent protection for herbicide-resistant seeds is currently at the forefront of ag-related antitrust cases. In that litigation, Monsanto has asked the Supreme Court to affirm the company's policy prohibiting farmers from saving or reusing such seeds once a crop is grown. Instead, the policy mandates that farmers buy new seeds every year.
The stakes are high. Moss said that seed companies are spending far more on research and development than any other factor, and that technology fees and royalties represent 37 percent of the cost of corn seed and 30 percent to 42 percent of the cost of soybean seed.
The high court heard arguments in the case Feb. 19, with justices appearing sympathetic to Monsanto's position. A decision is expected by June.
Patent-holders have fared well, Moss said of such cases involving what now is widely known as intellectual property.
In contrast, antitrust counterclaims have not fared well, she said. In other words, bet on Monsanto in this case.
However, as the industry becomes ever more consolidated, she said, courts might draw a line in the sand - or, perhaps more appropriately, in the corn field. Seed companies are working intensely to stack more genetic traits into their products, Moss noted, which might open the door to a successful antitrust lawsuit.
Courts might see differently, she suggested, if the stacking of traits creates a situation in which a grower can't buy one trait you want without buying traits you don't want.
The session ended with panelist Milton Marquis, a Washington, D.C., lawyer with many years of work in federal and state antitrust actions, offering a word of hope to those pushing against the trend of consolidation.
That hope lies in state legislatures passing more aggressive antitrust laws than those on the federal level. He cited precedents in which the U.S. Supreme Court has shown special respect to the status of state law in antitrust cases, leaving the door open - at least a crack - for the potential of work at the grassroots level to restrict the machinations of industry giants.