Arkansas Law Review

Volume 74, Number 1 (2021)


Farmer Cooperatives "Take Cover": The Capper-Volstead Exemption is Under Siege

Donald M. Barnes, Jay L. Levine

"When tillage begins, other arts follow. The farmers, therefore, are the founders of human civilization." There can be little dispute that food production is of vital interest to any nation’s security and economy. For this reason, the United States Congress, like many other legislatures around the world, has accorded special treatment to the agricultural industry, and particularly to farmers. One example of this special treatment is the Capper-Volstead Act, which provides farmers with immunity from antitrust liability for joint conduct undertaken by and through an “association” of producers.


A Costly Victory: June Medical, Federal Abortion Legislation, and Section 5 of the Fourteenth Amendment

Thomas J. Molony

The United States Supreme Court’s recent major abortion ruling in June Medical Services L.L.C. v. Russo was a win for abortion rights supporters, but a costly one. Although the June Medical Court struck down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital, a majority of the Justices—and most importantly, Chief Justice Roberts, whose concurrence constitutes the Court’s holding—stressed that Casey’s constitutional standard for pre-viability abortion regulations is not the amorphous balancing test the Court suggested in Whole Woman’s Health v. Hellerstedt, but a more deferential one under which a pre-viability regulation typically will be sustained if it does not place a substantial obstacle in the path of a woman seeking an abortion before viability.


Nondelegation of Major Questions

Clinton T. Summers

The Supreme Court has many tools at its disposal to address improper delegations of legislative power by Congress to the executive branch. Two of these tools are the nondelegation doctrine and the major questions doctrine. The nondelegation doctrine is a sledgehammer. Able to declare entire statutory provisions unconstitutional, its ability to do a lot of damage is perhaps the reason the Court never uses it. Indeed, the Court has only used it twice, both times in 1935. Although it’s old and rusty, the Court continues to keep it in the toolbox just in case. Since 1935, the Court has been using other, seemingly less destructive tools to do similar work. As recently pointed out by Justices Gorsuch and Kavanaugh, the modern major questions doctrine is one of these tools. There are, of course, others in the toolbox.


When the Sanity Code Becomes the Insanity Code: Following O'Bannon's Lead is the Key to Solving Group Licensing for NCAA Student-Athletes

Lee VanHorn

"Many times when you lose, it's the greatest opportunity to improve. You have this unique opportunity to make dramatic change that you probably couldn't make when things seem to be going right." A YouTube channel titled “Deestroying” displays unique talents of a Costa Rican immigrant named Donald De La Haye (“De La Haye”). De La Haye has a second channel, “KD Family,” and together, the channels have a combined 486 million views and more than three million subscribers. De La Haye majored in marketing at the University of Central Florida (“UCF”), but creates content for his YouTube channels as his fulltime job.”4While this may sound like a typical American success story of someone who immigrated to the United States, realized.