A. Bryan Endres & Lisa Schlessinger
ABSTRACT
The advent of genetic engineering and its application to agriculture has transformed the rural landscape at a microscopic level. A cursory glance of current production fails to reveal the underlying legal tensions at work in post-modern agriculture. The seemingly natural and necessary event of drifting, sexually viable pollen, however, implicates legal rights and responsibilities at the farm level with a ripple effect felt throughout the international commodity food and feed supply chain. Despite the ubiquitous nature of agricultural biotechnology, disputes arising from simple pollen drift lack a clear legal doctrine to define the multitude of subjects implicated, including tort liability, contracts, and administrative law.
Although others have discussed the limits of traditional tort doctrine as applied to pollen drift events, to enhance the accuracy of the debate, this Article evaluates actual cost and return data from GM and non-GM farmers to highlight the true nature of the assignment of burden and benefit these legal doctrines impose. We argue that social welfare maximization requires, in the instance of pollen drift, legislative assistance in the design of efficient liability rules. We further suggest that, with respect to liability rules, care must be taken to distinguish unilateral and bilateral accidents, with the ultimate goal of minimizing the total costs of preventive action of both parties in light of the expected damage. This could be done on the premises of negligence and the least-cost avoider theory, a result that shares the liability burden amongst conventional and GM farmers alike.
preferred citation: A. Bryan Endres & Lisa Schlessinger, Pollen Drift: Reframing the Biotechnology Liability Debate, 118 Penn St. L. Rev. 815 (2014).