Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 16 (1995)

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Stevens, J., dissenting

in selling. If "marketing" can be no broader than "selling," and if Congress did not intend the two terms to be coextensive, then "marketing" must encompass something less than all "selling."

The statute as a whole—and as interpreted by the Court of Appeals—indicates that Congress intended to preserve the farmer's right to engage in so-called "brown-bag sales" of seed to neighboring farmers. Congress limited that right by the express requirement that such sales may not constitute the "primary farming occupation" of either the buyer or the seller. Moreover, 2541(a)(3) makes it abundantly clear that the unauthorized participation in "marketing" of protected varieties is taboo. If one interprets "marketing" to refer to a subcategory of selling activities, namely, merchandising through farm cooperatives, wholesalers, retailers, or other commercial distributors, the entire statute seems to make sense. I think Congress wanted to allow any ordinary brown-bag sale from one farmer to another; but, as the Court of Appeals concluded, it did not want to permit farmers to compete with seed manufacturers on their own ground, through "extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities." 982 F. 2d 486, 492 (CA Fed. 1992).

This reading of the statute is consistent with our time-honored practice of viewing restraints on the alienation of property with disfavor. See, e. g., Sexton v. Wheaton, 8 Wheat. 229, 242 (1823) (opinion of Marshall, C. J.).* The seed at issue is part of a crop planted and harvested by a farmer on his own property. Generally the owner of per-* "It would seem to be a consequence of that absolute power which a man possesses over his own property, that he may make any disposition of it which does not interfere with the existing rights of others, and such disposition, if it be fair and real, will be valid. The limitations on this power are those only which are prescribed by law." Sexton v. Wheaton, 8 Wheat., at 242.

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