Agriculture Law and Management

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Selected Legal Principles

In taking this course, most of us are studying law for the first time. This page introduces principles that underpin many of the legal concepts addressed in this electronic text.

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This web site overviews legal concepts, but underpinning our legal system are principles that may not be obvious.  This web page introduces several principles that influence numerous legal concepts and laws.

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Law is abstract; it is not a physical item that can be observed, touched or measured. Law does not occur in nature; it is entirely based on human thinking (even though our thoughts and understanding are influenced by the natural world).

Review What is the Rule of Law? -- especially the eight points in the section titled "Elements of the Rule of Law" (copied below)

  • Laws must exist and those laws should be obeyed by all, including government officials.
  • Laws must be published.
  • Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed.
  • Laws should be written with reasonable clarity to avoid unfair enforcement.
  • Law must avoid contradictions.
  • Law must not command the impossible.
  • Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed.
  • Official action should be consistent with the declared rule.

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However, our laws are documented; they can be found in a written format. Click here for links to web sites that provide access to our laws.  Writing the law is necessary so we have an archive from which to retrieve our understanding of these abstract concepts.

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The law is ascertainable and predictable -- the legal outcome of a situation or fact pattern should be predictable. For example if I enter into a contract and then do not fulfill my obligations under the contract, I will be required to compensate the other party to the contract for the loss I caused them by not fulfilling my contractual obligations. This outcome is known and understood by both of us before we enter into the contract, and thus is expected to be part of our thought process in deciding whether to enter into the contract. Also, everyone has access to the laws; they are public information and available for anyone to read. The rules (laws) of our society are not secret.

  • Individuals are expected to know and understand the rules/laws that pertain to their situation. Not knowing the law is not a justification for not complying with the law. Individuals who do not know what the law is for their situation are expected to make the effort to learn about the relevant law before they proceed with their action.

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There is a distinction between a legal issue and a policy issue. A legal question asks "what is the outcome or solution to a situation or problem under current law." A policy question is likely to ask "what do we think the law SHOULD say about the problem we are considering."

  • Restated, with a policy question, we are asking whether the current law is the most appropriate law at this time given society's collective values. A legal question asks "what IS the current law, or what is the solution to the problem under the current law." A legal issue does NOT ask us to consider whether the current law is the desired law, or whether the current law should be changed.
  • The focus of this web site is on legal issues, not policy issues.  Many of you will have opportunity to study policies questions in other courses.

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The law does not make decisions for individuals, nor will the law prevent an individual from making a poor decision; for example, a buyer is responsible for determining what they are purchasing.

  • See Holcomb v. Zinke, 365 N.W.2d 507 (N.D. 1985) for an example of these two concepts.

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Disclosure -- even though the U.S. legal system does not make decisions for individuals, it does take steps to assure individuals have access to information so they can make an informed decision.  It is common for the law to assure access to information by requiring others, in specified circumstances, to reveal or disclose information they may have that the decision maker may need to make an informed decision.  The following list offers some examples.

  • Prospective spouses are required to disclose their financial affairs to one another before they enter into a premarital agreement.  If the disclosure is not made, the agreement will not be enforceable (e.g., N.D.C.C. §14-03.2-08).
  • Businesses soliciting investors must disclose information about the business and its principals (that is, the business leaders and managers) as part of the solicitation (N.D.C.C. §10-04-08(1)).
  • Trustees and agents must disclose information about their activities to the beneficiaries and principals (e.g., N.D.C.C. §59-16-13).
  • Food companies must label their product so consumers are aware of what they are purchasing.

In these examples, the law does not make the decision but instead takes steps to assure the decision maker has information with which to make the decision.

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Although our nation is nearly 240 years old, many of our legal concepts extend back hundreds of years; in some cases, thousands of years. Basic legal principles that we adhere to today have evolved over the centuries; many of these principles are based in English law. Our strong relationship to English law reflects our history, that is, we were part of the English empire and under English law until the time of the American Revolution. Even though we changed our government at that time, we did not discard all the legal principles. Accordingly, many of the concepts addressed in this course/web site have a long history extending back hundreds of years.  Similarly (but to a lesser extent), our law also reflects the influence of French and Spanish laws.  We also continue to follow some legal concepts that can be traced back to the time of the Roman Empire and earlier.

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Find a peaceful solution -- the citizens of our nation are expected to arrive at a peaceful solution to a dispute by using the courts, rather than risk the potential of a violent situation by "helping yourself" or "taking the law into your own hands." Individuals are expected to try finding a solution to a dispute through negotiations, but if that fails, the alternative is to seek resolution through the judicial system. An individual whose actions "disturb the peace" will be charged with a crime even if the reason for disturbing the peace is "honorable."

  • If force is necessary, it will be exercised by society through government, such as a sheriff following a court order after the court has reviewed the situation and all parties have had an opportunity to present their arguments or perspectives.
  • Individuals are allowed to use only the force necessary to protect themselves and others from immediate harm.

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We place more value on life than we do on property -- if the choice is between injuring a person or damaging (protecting) property, the law generally expects us to not injure a person.

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All property rights are owned by someone -- and if an owner cannot be identified, the rights are owned by the state. Property rights cannot be created or destroyed; they can only be defined and transferred, even if the transfer takes the form of a government regulation.

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Transferability -- the U.S. legal system assumes that society is best served if our resources are put to their best/highest value use (without abusing them) and that transferability is the best way to assure they will be put to their best/highest value use.  That is, if you think you can put my property to a good use, make me an offer.  If the value you offer me is more than the value I think I will receive from continuing to own the property, I may sell to you.  Also, your offer will be no more than what you value the property.  Thus if your offer is enough to motivate me to sell to you, we have to assume the property is being shifted to a higher value use.  But this determination is being made in the marketplace; not by government.

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Act like an owner -- the U.S. legal system expects property owners to fulfill their role as owner by acting like an owner; and if they do not fulfill that role, our law may not preserve their ownership rights.

  • Example -- the concept of adverse possession is that ownership will transfer from the current owner to a new owner -- without agreement or compensation -- if the current owner does not assert his or her rights of ownership for an extended period of time during which the new owner has been acting like the real owner by possessing, using and excluding others from the property.
  • Example -- a co-owner is not entitled to share in the revenue from a tract of land if the co-owner is not participating in managing the property.  Instead, the co-owner who is performing the management responsibilities is allowed to retain all income (after paying expenses like the mortgage and property taxes).

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The government (whether it is local, state or federal) does not have unlimited authority. Instead, it is better to think of government as having only the authorities the people have granted to government in the Constitution. Likewise, the government is prohibited by the people from taking certain actions. For example, some of the prohibitions the people (we) have imposed on government (in the Constitution) are interfering with communication (freedom of speech), interfering with religion (freedom of religion), and taking of private property; see the Bill of Rights.

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If government needs to take your property for a government purpose, you are entitled to be compensated for the value of the property (U.S. Constitution, Amendment V). However, if the property is needed for general safety, health, and well-being of society, government can take the property without compensating the owner. This government action would be considered an exercise of the government's police power.  Police power generally defines the limit of action government can take without compensating the individuals affected by the government action.

  • "Hoffman's argument he is entitled to just compensation is equally unavailing. Hoffman began his business long after N.D.C.C. ch. 24-16 went into effect, and the government's exercise of its police power to abate a public nuisance does not entitle the property owner to compensation. City of Minot v. Freelander, 426 N.W.2d 556, 560 (N.D. 1988)." Mountrail County v. Hoffman, 2000 ND 49, 607 N.W.2d 901

The limit to government authority will be addressed several times throughout the course.

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State law arises in a similar manner to federal law since states also have three branches of government.

  • Many of the concepts addressed in this course are state law.
  • There is variation among state laws, but there also are considerable similarities.
  • In the past 50 years, there has been increased pressure to standardize state laws so businesses involved in interstate transactions (and individuals who move about and live in different states) encounter fewer problems due to conflicting state laws. The leading effort in accomplishing this standardization of state law has been the National Conference of Commissioners on Uniform State Laws.
  • A Uniform state law must still be adopted by the state legislature to take effect; thus a proposed uniform law, if adopted by only several states, would not reach the objective of nation-wide uniformity.
  • It also is helpful to recognize that a uniform law that has been adopted by all 50 states does not make it a federal law; it is still state law.  Congress is not involved in the process of adopting Uniform laws; it is a state matter and thus addressed by each of the 50 state legislatures.

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As stated above, government in the United States is described in our constitutions, including authorities and prohibitions.  The U.S. Constitution also indicates that state governments can exercise any authority that is not delegated to federal government and that is not prohibited for state government (U.S. Constitution, Amendment X).  Restated, U.S. federal government can only do what it is authorized to do in the U.S. Constitution; state governments can do anything else except what the state government is prohibited from doing.

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Some prohibitions of government authority apply to federal and state governments, e.g., government may not establish a religion or laws may not discriminate on the basis of race.

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Local governments generally receive their legal authority as an extension of their state government.

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Any conflict between federal law and state law is resolved with federal law prevailing; that is, federal law is supreme, or federal law preempts state law (U.S. Constitution, Article VI, Para 2).

  • "The dormant Commerce Clause is the negative implication of the Commerce Clause [of the U.S. Constitution], pursuant to which states may not enact laws that discriminate against or unduly burden interstate commerce. Quill v. North Dakota, 504 U.S. 298, 312 (1992)." See Jones v. Gale, United States District Court for Nebraska, December 15, 2005; p.8. et seq.
  • Congress has indicated, however, that in some circumstances state law will apply as long as the state law aligns within federal guidelines.

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How do nations resolve disputes among themselves? Who creates and enforces international law?

  • There is no international government that prevails over national governments.  National governments peacefully resolve disputes among themselves only through negotiations (treaty).  War and trying to avoid one another are the alternatives.

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A thought about learning and communicating. As you proceed through this course and your career, you will need to clarify your writing.  To the surprise of many, one strategy to clarify our thinking and writing is to slow our thought process (rather than speed it up) until we are able to recognize all the mental steps we take as we proceed from one thought to another.  Our minds work so fast that we do not recognize that we have proceeded from step 1 to step 4 in our thought process and thus we do not recognize that steps 2 and 3 occurred. Our explanation of our thought process then, may only mention steps 1 and 4.  but our reader or listener may not recognize that steps 2 and 3 have to occur to move from step 1 to step 4.  Without us explicitly recognizing and stating that steps 2 and 3 are occurring in our thought process, our reader or listener may not accept or understand that step 1 ultimately leads to step 4.  Accordingly, we must discipline ourselves to understand and communicate our complete thought process; not just the obvious "stepping stones".

My suggestions to you:  One, slow your thought process until you recognize all the steps you take in analyzing a situation.  Two, state these steps in your writing or speaking so the reader or listener takes the same steps, otherwise the reader or listener may not be able to follow and understand your thought process.  Three, once you have developed the skill to recognize and state all the mental steps you are taking, speed up your thought process again, but do not stop recognizing and explaining each step as you proceed through your analysis or explanation of a problem or topic.

Bottom line -- we need to be fast thinkers, but we need to be clear thinkers.  We need to slow the thought process to practice clear thinking and once we have achieved that skill, we are ready to resume fast, but clearer thinking.

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By the end of the course, we will have discussed:

  • Property is not the item; it is the legal rights.
  • Consequently, there can be intangible property.
  • Legal rights also pertain to persons, including the right not be be injured, thus we have tort law.
  • Contract law recognizes that we can define our relative legal rights and obligations by entering into an agreement. These self-imposed and self-defined legal rights will be enforced by our legal system.
  • Society, through government, continues to define legal rights and regulate private activities but the regulation cannot be a "taking" of private property (broadly defined).
  • Consequently, we distinguish between an exercise of police power and a taking.
  • We also recognize that the law continues to change as our social values change.

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Summary of Key Points

  • Some fundamental legal concepts may not be apparent in our statutes, regulations and court cases; but these concepts have to be understood.
  • Even though the law changes as society changes, some current legal concepts are based on ideas that are 100s of years old.

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The next page overviews the organization of the U.S. legal system.

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