Facing concentration in meatpacking, farmers and ranchers are making increasingly urgent calls for protection from practices they claim make it difficult for them to earn a living. Among the statutes they have turned to for recourse is the Packers and Stockyards Act, a 1921 law that prohibits meatpackers from engaging in unfair, deceptive, or unjustly discriminatory practices. Courts, however, have made PSA cases more difficult to win by requiring that plaintiffs prove “harm to competition” to bring a successful case. Recently, the USDA has intervened in this debate, alternately supporting each side of the harm to competition question in controversial rulemakings, and it is now planning to once again propose a rule saying the PSA does not require harm to competition. This Comment surveys the USDA fight over the harm to competition requirement, and assesses the consequences of rulemaking for the harm to competition requirement under Chevron and the administrative deference regime that may succeed it. It argues that the USDA’s view of the harm to competition requirement, if the agency successfully embodies it in a rule, should receive deference.
Parts, Spencer James
"Tyson and Leviathan: USDA Rulemaking and the PSA Harm to Competition Requirement,"
The University of Chicago Business Law Review: Vol. 1:
1, Article 20.
Available at: https://chicagounbound.uchicago.edu/ucblr/vol1/iss1/20