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December 12, 2004

A Case Of Whine, or Not?

I've been following this with interest for some time:

Christmas is coming, and if you're thinking of going online to order your Uncle Bob a bottle of that nice pinot noir you tasted on your trip to Oregon last summer, you might want to think again. Depending on where Bob lives, you could be committing a crime. Importing wine directly from out-of-state vineyards is against the law in 24 states; it's a felony in five.
At least it is this Christmas. Next year may be a different story--depending on the outcome of the case the Supreme Court heard Tuesday. You don't have to be an oenophile to hope the Justices rule in favor of the wineries and the consumers who wish to buy from them. How the Court rules in the wine case could have implications for interstate commerce and Internet selling overall.
If you're wondering how ordering a bottle of wine for your uncle is any different from ordering him a shirt from L.L. Bean, the short answer is the 21st Amendment. The 1933 amendment that ended Prohibition also gave states the authority to regulate the importation and distribution of alcohol. The question for the Court is whether the 21st Amendment supersedes the Constitution's Commerce Clause, under which the Founders gave Congress the sole right to regulate trade across state lines. Or can states enact protectionist barriers to the importation of alcohol?

This is a tough one. My more Librarian (and alcohol-loving) instincts cry, "Free the oppressed grape! The noble fruit was never meant to live in bondage!" I find it extremely annoying not to be able to ship a wine basket to certain states, or join a wine club. When I lived in California, we loved going to Napa and Sonoma. But I couldn't send bottles of wine to my parents or to friends back East: it was against the law. Many wines we tasted weren't sold in stores, so they were otherwise unavailable. So part of me would like to see bans on direct imports from out-of-state wineries lifted.

On the otter heiny, I'm unimpressed with the logic of arguments like this:

You know the liquor lobbies are really desperate, however, when they argue that direct wine sales would make it easier for minors to obtain alcohol. Kids these days are precocious, but it's hard to imagine a teenager using dad's credit card to order $20 bottles of wine for a party a couple of weeks from now.

It's not the teen ordering wine once for a party you worry about. It's the teen who's drinking secretly every day. And even though I hate the idiotic restrictions states like Maryland put around the availability of alcohol, they, too are part of federalism: local control over local living conditions. I hate to see the federal government beat the states over the head with the Commerce Clause. Increasingly, they are using it like a club to neutralize local voter control and homogenize living conditions in this country.

The Wal-Martization of America is a seductive vision: cheap goods and seemingly endless selection -- if we're willing to accept the imposition of the same stale menu of choices everywhere we go. A 50-state plan-o-gram designed to maximize profits and minimize waste.

How boring.

So are we truly freer, or not? I don't really know the answer to that one.

Posted by Cassandra at December 12, 2004 05:24 AM

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Comments

Both sides in this case are being disingenuous.
Allow me to pontificate.

Juanita Swedenburg, the owner of the small Virginia winery brought the suit (with the assistance of the California-based Wine Institute, an industry association) when she discovered that she was illegally shipping her small batch wines to folks living in New York, which prohibits the direct shipment of wine to its residents. To hear Ms. Swendenburg tell it, this is a story about a small family-owned winery struggling against the powerful wine wholesale industry. Her ability to market her product is hampered because she can not afford to distribute it through a wholesaler, as nearly all states require. Thus she must contract with a middleman, which she prefers not to have to do.

On the other side, we have the wholesalers. Again mostly family-owned businesses that distribute hundreds of different brands of wine in assigned territories in their state. The wholesalers market the wine to stores and restaurants, sell and deliver the product, and collect and remit excise taxes to the state. For this effort, the wholesaler marks the product up, and takes his cut. The whole distribution scheme is dictated by something called the "three tier system:" winery, wholesaler, and retailer, and each tier is kept completely separate from the other. The idea is to prevent, say Coors, from owning bars where only Coors is sold, or from exercising control over retailers so that other brands are squeezed out. In other words, the three tier system acts a check on the power of huge wineries and breweries to control the marketplace.

Now, what's really going on here is that wineries, particularly big wineries, want to cut out the wholesaler and sell directly to retailers. The same holds true with the big breweries. The case is not really about whether Ms. Swedenburg can ship a case of wine to Aunt Fanny in Albany, but whether Gallo and Kendall-Jackson can sell directly to big retailers like Walmart and Costco. (Costco, by the way, is currently attacking the three tier system from the retailer's side in Washington state). The big guys don't want to drive all the wholesalers out of business, at least not immediately, because they need them to service the small, less profitable accounts. It's a squeeze play. OF course the wholesalers are fuming because their being put out of business by the very same people who's products the wholesalers created the market for. "Thanks for creating the demand! We'll take it from here." Pretty cheeky.

The states, which come down on the side of the wholesalers, decry this attack as undermining states rights granted them by the 21st Amendment. True enough. But what's really at stake here is excise tax revenue. AS long as the states have the wholesalers under their thumb, they can monitor and control the flow of wine and beer and make sure they get their taxes. Once the flood gates are opened to direct shipment from out of state, New York can't ever really know whether it's getting paid the right amount or not. This is big money folks.

None of these arguments are very compelling to Mr. & Mrs. wine drinker, however, so the whole thing is being couched as a struggle between a consumers "right" to have a case of Billy-Bob's Blackberry Brandy shipped directly from Oklahoma to Pine Street without going through the middle tier, and the horrors of 16 year old Justin ording up a case of Jorden Merlot for the homecoming party. Can you say hyperbole? And as far as the wholesaler's markup goes, it's a wash. You'll pay about three bucks per bottle in shipping costs by getting it direct, and if you think that the winery is going to lower its shelf price for direct orders, I've got a bridge I like to show you.

So there you are. There a grain of truth to be found in everybody's arguments, but there's a helluva lot more smoke.

Posted by: spd rdr at December 12, 2004 08:30 AM

I agree that, in the end, the big players are really driving the bus while it is the tragic plight of "the little guy" that is presented (the revenue angle was apparent from the get-go), but at least to me, it doesn't make the other arguments less compelling.

There is a convenience angle that I, as a consumer, would like to have direct shipment available to me. I think that's still a valid argument.

And I think perhaps it is still a valid argument that the individual states have the right to prohibit Justin from ordering wine over the Internet as well, just as Maryland has the right to make it difficult as hell for Justin to buy beer or alcohol or to keep me from buying beer in a grocery store - it may be stupid as all get-out, but that's what local voters have decided.

Posted by: Cassandra at December 12, 2004 09:26 AM

By the way, counselor, I don't think I've ever seen that many words out of you at one time. I should have had you write this post - you're much more entertaining and informative than I am :)

Posted by: Cassandra at December 12, 2004 09:30 AM

One might think spd had some direct involvement in this case.

Speaking as a dreaded evil middleman myself I am pretty damn sure spd nailed the truth of this. Big Wineries don't give a damn about the botique business, but want to ship directly to the big retailers. There will always be a place for the middle guy, we buy in truckloads and sell by the case. If you think you can get the same price buying a single bottle or even a case as we get buying buy the truckload, and it also reduces the shipping cost per unit as well.

Personally I would like to see the big guys give it a shot and try and screw the middleman. That would force the wholesalers to promote a better product than the swill from Big Wine and Big Beer.

And the Bigs would learn the truth of this quote from the founder of Sam Adams Brewery, "the difference between sales and marketing is like the difference between sex and masterbation, one requires actual human interaction, the other can be done by yourself in a dark closet".

Posted by: Pile On® at December 12, 2004 09:58 AM

re: I am pretty damn sure spd nailed the truth of this..

I don't doubt that for a second, Pile.

I just enjoy arguing with him :) He's usually too much of a gentlemen to let me know I've made an ass of myself.

Posted by: Cassandra at December 12, 2004 10:14 AM

Pile, I tend to believe that in the event the Bigs get their way you are going to see a major drop off in what's available to you at the local store. The reason being that most distributors make their bread and butter delivering Coors, Miller and A-B products, while the small breweries and wineries piggyback on the distribution system. Omegang may be a fine beer, but it's not going to pay the bills, so watch for the independents to disappear from the shelves. Luckily, though, you will be able to order a case of beer over the internet and have it shipped to your house...in a few weeks.

Cassandra, you know me better than that. You just haven't made an ass of yourself in while, that's all.

Posted by: spd rdr at December 12, 2004 11:45 AM

That may be partly true spd, you would probably see your favorite microbeer dissappear from some grocery store shelves, but that is already happening. Here is texas most of the distributors are already owned by major breweries, and they try to push out the smaller guys. Here is Houston (I was chatting with my favorite bartender who has a good selection) many of the micros are distributed by an independent company that makes it's living outside of the major brews and having sales reps that are knowledgable about wine. That may not be economically viable everywhere but it seems to be working here.

Posted by: Pile On® at December 12, 2004 01:52 PM

The over-regulation of American life is mostly done at the federal level, by twisting the commerce clause to do so many things. EPA, Endagered Species, etc. all flow from a view of the Commerce clasue that is probably not right.



Do we want to do away with all of these things?



But the control over importation of wine and spirits is specifically granted to the states (when Prohibition was repealed).



The standardization of American culture is a function of cost. In any city in America - I can't speak for the rural areas - you can find a wine shop that could get you anything in Wine Spectator. It won't be cheap.



Sam's Club on the other hand carries some of my very favorite wines in the the $25/bottle price range, for about 10 or 15% less than I could get them anywhere else. (Clos Du Bois, Chateau St. Jean, and Robert Mondavi Select - if memory serves me correctly.) If I really want a Sterling Vinyards, a Modavi Reserve or a Frog's Leap, I can go to wine shop locally.



Sam's also have tremendous prices on Bombay Saphire, Crown Royal, Jack Daniels, Maker's Mark, Stolichnaya and Absolute. Why would I want to pay more?

Posted by: Zendo Deb [TypeKey Profile Page] at December 12, 2004 09:32 PM

That's true Deb, but on the other hand some the the really neat wines we got to try in Napa never make in into small wine shops - you can only get them directly from the winery. So if you can't hand-carry them or direct ship them, you're out of luck. It seems kind of silly to say "you can buy this if you live in Virginia, but not if you live in Maryland", but that's exactly the current state of affairs unless you want to make a full-time job out of buying wine (which I don't).

And because I live in the feudal state of Maryland, I can't buy wine in Sam's or Costco. I hate that, but that's the decision of the idiots in Maryland (a Democrapic state). So to a certain extent, I'm playing devil's advocate here.

I'm definitely in the minority here - I'd prefer to be able to walk into the grocery store and buy wine and beer. And I think it's moronic to have to go to an ABC store to buy liquor. But that's what my state's voters have decided on, so I abide by it.

I may not retire here just for that reason. Frankly - it's a quality of life issue. But it's really not that big a deal in the long run.

It still seems to me that the federal government shouldn't be able to erase those local differences purely on price concerns. Maybe on other goods, but alcohol is something of a special case.

That said, I don't think the states will win out. It's hard to see how they can argue this isn't protectionism. It would be different if they didn't allow direct sales from in-state wineries.

Posted by: Cassandra at December 12, 2004 10:02 PM

No matter what the outcome of the court case, due to all the litigation, lawyers will prosper.

Posted by: Don Brouhaha at December 12, 2004 10:22 PM

Yahoo!

Posted by: spd rdr at December 12, 2004 11:18 PM

I do not drink alkyhaul, but this also smells like a test case for other items too. What other fallout would result from this case were it to go with the wholesalers? Or the producers cutting out the middleman?

Posted by: Cricket at December 13, 2004 08:15 AM

All I have to say is that I am shocked really that Cass would give any credibility to the underaged drinking angle of this story. The states don't care about that. No one believes that underaged drinking is going to be a factor here. The only underaged drinkers with credit cards are 18-21. If parents can't look on their credit cards and see large alcohol internet purchases, they deserve a drunk child. NO, this story is NOT about the children. Besides, kids can't afford the wines and beer that would be sold on-line.

Kids drinking: that is what states say to limit competition and keep consumers from getting what they want. Liquor distributorships in Georgia (which also prohibits these sales) are political favors. They are limited and monopolistic. You are an instant millionaire if you get one. The outlawing of interstate commerce (and that is what we are talking about here) is a political buy off, pure and simple. Underaged drinking? Give me a break.

Posted by: KJ at December 13, 2004 09:02 AM

KJ:

You have obviously never worked for a merchant bank.

I have.

The vast majority of people never check their cc statements.

And as I said, you don't worry about LARGE purchases - you worry about the child who is drinking steadily - small, regular purchases that might well go unnoticed on a statement with a lot of purchases. Also, many parents GIVE their child a cc for personal use, especially when they go to college and it is virtually unsupervised. It is not a question of whether the PARENTS DESERVE an alcoholic child, but of PROTECTING THE CHILD and preventing illegal purchases of alchohol.

By your reasoning, stores and bars could simply stop carding on the theory that parents who fail to teach their children not to buy alcohol DESERVE an alcoholic child.

That's just plain silly.

Posted by: Cassandra at December 13, 2004 09:09 AM

You also have children who are at boarding schools. They often have credit or debit cards with separate statements for convenience. Their parents have so much money, they're not worried about nickel-and-dime transactions.

This is how the other half lives, KJ. These kids routinely charge thousands of dollars a month with no oversight. Accountants manage their statements and pay the bills. And a winery name may not even show up on the bill - it might just say "Smith and Sons", so their may be not obvious red flag, even assuming someone is paying attention or cares.

Posted by: Cassandra at December 13, 2004 09:35 AM

Great. You are telling me we need to prohibit these "interstate" transactions because of the boarding school alcoholic children? I'll say it again: that is not what these laws are about, and give me a break.

I'm done discussing this. These laws are so stupid from a public policy perspective, and likely unconstitutional to boot, that I don't even have the patience to discuss this made up "nanny state" rationale.

We can confirm your age for internet porn. Why not alcohol? Don't the credit card companies have your age on file? This argument is so stupid I can hardly believe we are discussing it.

This is just corporate welfare disguised as "public interest." As spd rdr described, in a much more diplomatic and lawyerly way.

Posted by: KJ at December 13, 2004 10:19 AM

KJ, as I said before, the states are in a poor position to argue this if they are allowing in-state direct sales via the Internet, except that broadening the commerce to out-of-state wineries would obviously vastly expand the availability and traffic, which would also arguably expand the potential harm. But it's still a weak argument, IMO.

It still looks like protectionism.

And your porn argument is less than convincing as I'm not convinced the age checks work - they're way to easy to evade. But you don't really see the harm there, so I'm not going to win that argument anyway.

Posted by: Cassandra at December 13, 2004 10:25 AM

Hmmmm....
Time for a straw poll:

1) Do you think that the "dormant" Commerce Clause which inexpressly restricts the ability of the states from interfering with interstate commerce should control over the Twenty-first Amendment's express grant of authority to the states for control over the importation and distribution of alcoholic beverages within their borders?

2) If the Court so holds, has it then in fact decided that the Twenty-first Amendment is unconstitutional? Can it do that?

Heh.

Posted by: spd rdr at December 13, 2004 10:57 AM

Sure I see the harm there. That doesn't mean I see the need (or legality) for legislation there. C'mon Cass, you know the deal:

1. Is there a harm subject to legislation?
2. If yes, is legislation constitutional?
3. If yes, is it good legislation/public policy?
If yes, do it.
If no,
4. If no, do I want it around me?

Drugs: yes harm is easy to identify; yes; not the way we do it - costs outweigh benefits to other methods; no I don't want drugs near my house.

Porn: yes, no, doesn't matter but probably not, no

Interstate liquor: frankly no but lets pretend yes for the children, questionable, no, yes

Allowing 12 Days of Christmas to be sung near spd rdr: clear harm to spd rdr and perhaps singers; banning it does raise 1st amendment implications; yes it would be good public policy to protect spd rdr in this way; no I don't want spd rdr near me when the 12 Days of C-mas is playing - he might be dangerous

Banning guns: yes there is harm in having certain people with certain guns (eg, spd rdr when people are singing 12 Days of C-mas); questionable - depends on scope; no such laws are not good policy because of other harms/costs; yes I want guns

I'm less grumpy now Cass. Another cup of coffee helps a lot.

Posted by: KJ at December 13, 2004 11:05 AM

mr. rdr, have I not been making precisely that argument, albeit in layman's language, by saying that alcohol is a special case? :)

I actually did some reading on this yesterday afternoon and was going to unleash some case law on your (collective, not specific) heinies, along with some searing legal analysis, which I used to love to do, but have not attempted since my paralegal days, but chickened out due to a combination of mild (OK, moderate) intoxication, general busyness, and the awareness that I'm really quite rusty at this and would probably get soundly thrashed by the assembled legal community.

And so I took refuge in generalities.

Posted by: Cassandra at December 13, 2004 11:28 AM

spd rdr:

Good question. I know you do this stuff, and I only have my casual interest and law school background to work with, but I offer the following:

The 21st Amendment was not necessarily intended to do away with other restrictions in the Constitution. Eg, the 21st Amendment came after the 14th Amendment, so it controls. But does that mean states may give distributorships in a racially discriminatory manner? I don't think so.

Likewise, States may simply outlaw liquor sales altogether, but that doesn't mean that if it allows liquor sales that it can discriminate on the basis of citizenship or other classifications protected under original constitutional principals.

Could States pass laws discriminating in favor of locally brewed spirits without valid non-disciminatory reasons?

Saying that the 14th Amendment or the dormat commerce clause applies in some ways to liquor sales is not saying the 21st Amendment in unconstitutional. It is saying that other rules were not written out of the constitution when the 21st was passed.

I think this issue is similar to saying the government may restrict speech, especially in time place manner ways, but it may not restrict on the basis on viewpoint. So a city may not have to allow a marching permit at all, but if it does, it has to apply viewpoint neutral rules to all applicants.

States don't have to allow liquor sales at all. But if they do, they can't discriminate in favor of local distributors in violation of commerce clause principles.

Posted by: KJ at December 13, 2004 11:28 AM

BTW, I do know that my first "principal" was incorrect, but my second "principle" (used with the same meaning) was the correct usage.

Posted by: KJ at December 13, 2004 11:30 AM

Dang, I make a good crab cake, if I do say so myself...

Posted by: Cassandra at December 13, 2004 11:31 AM

Oooooh... KJ throws the RACE CARD.

Posted by: Cassandra at December 13, 2004 11:32 AM

KJ: The states' Twenty-first Amendment authority has been often be limited by the Court(s) when it is used to favor "local" interests to the detriment of out of state interests (such as tarrifs on imported wine, Bacchus v. Diaz) or where a state attempts to regulate commercial speech based loosely on its authority to control the importation of alcohol (44 Liqourmart, etc.). The difference here is that, unlike these previous cases where the state attempted to do something beyond the grant of power given Twenty-first Amend., the instant case is an attack on precisely the authority granted the states to control the importation of alcohol.

To wit:
The transportation or importation into any State, Territory, or possession of the United States for delivery or use therin of intoxicating liqours, in violation of the laws thereof, is hereby prohibited.

U.S. Const. Amend. 21, sec. 2.

The only way for the Court to remove the power a state has to regulate the importation of alcohol is to say that it is unconstitutional in its own right. Very tricky.

Of course we could always repeal the Twenty First Amendment and go back to prohibition. YIKES! If the Court tosses the 21st AMend. THERE WILL BE PROHIBITION because the 21st Amend REPEAL Prohibition.

Scared yet?

Posted by: spd rdr at December 13, 2004 12:53 PM

Not really scared but as a brewer I would have to improve my locks and stock up on ammo.

Posted by: Pile On® at December 13, 2004 01:19 PM

Is it not the text of Section 2 that is problematic and in conflict with the dormant Commerce Clause (I admit I really am not familiar enough with all of this yet, so I may be all wet).

Could its text not be limited in some fashion or interpreted narrowly to bring it into line with the dormant Commerce clause, leaving Section 1 intact?

Posted by: Cassandra at December 13, 2004 01:20 PM

I blew the HTML tag earlier, and so the test of Sec. 2 didn't appear.
"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

Pretty straightforward language. Hard to interpret it as doing anything but saying that the laws of each state govern the importation of booze into a state when that booze is for use within the state. I suppose it could be narrowed to read "intoxicating liquors doesn't mean wine or beer, but only distilled spirits," but that is a real stretch and would require the definitions of about 10,000 other federal laws be altered. No, I see this as a clear exception to the dormant Commerce Clause. What's more, considerring that only 8 Justices heard the argument, it's almost guaranteed that teh decision is going to be a real doozy - maybe a plurality, or maybe a split decision. Of course, the simplest method of fixing the problem IS TO CHANGE YOUR STATE'S LAWS. Virginia did.

Posted by: spd rdr at December 13, 2004 01:57 PM

Arggh...

Lawyers are exploding my poor brain :) I don't quite have the wherewithal to keep up with you guys. I have the germ of a comeback but don't have much confidence in it, and anyway as usual I'm halfway playing devil's advocate.

Give my poor brain cells a while to recover. This stuff doesn't mix with software and bug testing very well.

Posted by: Cassandra at December 13, 2004 02:24 PM

[processing...processing...]

Not that I'm not enjoying it, mind you - I just feel kind of stupid right now :)

Posted by: Cassandra at December 13, 2004 02:27 PM

"... in violation of the laws thereof [that being the state's laws] ..."

I somewhat disagree spd rdr. Early cases under the amendment were quite expansive, but as you point out, the trend is more limiting.

Eg, because "[t]he central purpose of the [Amendment] was not to empower States to favor local liquor industries by erecting barriers to competition, the 'central tenet' of the Commerce Clause will control to invalidate 'mere economic protectionism,' at least where the state cannot justify its tax or regulation as 'designed to promote temperance or to carry out any other purpose of the . . . Amendment." Bacchus Imports, Ltd., v. Dias, 468 U.S. 263, 276 (1984)

There is nothing in this language that gives the states extra powers that are exempt from the dormant commerce clause, just like this language may not be exempt (at least in all circumstances) from the 14th Amendment, the privileges and immunities clause, etc.

The laws of the states are still subject to these general provisions. Had the amendment said "the laws of the states on this subject supercede and override all other constitutional principles" or words to that affect, perhaps the expansive reading would be more justified. I think the trend of the Court is to balance the 21st Amendment considerations and the nexus between the law and those purposes, and the other generally applicable provisions. Thus, the internet issue is close and does not put in danger the 21st Amendment generally. Lots of cases have limited the scope already without calling the provision invalid. It is simply being forced to balance two valid principles of constitutional jurisprudence (interstate commerce discrimination and state control of alcohol).

Posted by: KJ at December 13, 2004 03:20 PM

What could be worse than The Living Constitution, you ask?

Night Of The Dormant Commerce Clause...

...a horror story.

Could this be the next collaborative work of fiction to come from the old Jet Noise crew?

"Out of The Wine Wars arose a horrifying conundrum to vex even the most adroit legal minds of the 21st century. The courts had been using the Commerce Clause to beat the states into submission for too long. But now, a stubborn, rag-tag rebel alliance had arisen on the ice-planet of Hoth...no wait...wrong story a few brave (if snarky) attorneys wrestled with the horny...err...thorny legal questions of the day. Did 21st Amendment trump the dormant Commerce Clause that was spreading its malignant shadow across the Land like a..an...evil shadow?

Was there hope for the Federalist Rebellion? Or would the Evil Wine Facists have their way?

Only time would tell....

Posted by: Cassandra at December 13, 2004 04:00 PM

The problem with this story is that the prude states are set up as the protaganists, while the drunkards are the antaganists. Now Cass, as a fellow wine consuming drunkard, don't you want to switch the story line a little?

Posted by: KJ at December 13, 2004 04:44 PM

I dunno KJ, doncha want to be one of the Villainous Company? :)

Posted by: Cassandra at December 13, 2004 05:22 PM

Point made.

Posted by: KJ at December 13, 2004 05:42 PM

KJ, I could go so on and on about this particular imbroglio. You are absolutley correct to say that the Twenty-first Amend. doesn't "exempt" states form the rest of the Constitution. (I was speaking in terms of an "exception" from the general rule that Congress has the power to regulate Commerce.) Court after court has refused to allow states to hide behind the Amendment when the purpose was sheer economic protectionism. Dias was a perfect example. There Hawaii exempted locally made wines from an excise tax. Clearly , this disadvantaged out-of-state wineries and did nothing to promote temperance, so it was shot down. But in Bridenbaugh v. Modisett, 227 F.3d 848 (7th Cir. 2000) Judge Eastbrook upheld Indiana alcohol importation laws stating:
If the product were cheese rather than wine, Indiana would not be able either to close its borders to imports of to insist that shippers collect taxes, despite the effect on its treasury...But sec. 2 of the twenty-first amendment empowers Indiana to control alcohol in ways that it canoot control cheese." Id. at 853. Of course, should the challenger be able to show that the ban on direct shipping was enacted with for the purpose of protecting local economic interests to the detriment of out-of-state interests the law will be facially invalid. If the law's "practical effect" is to discriminate between similarly situated in and out-of-state entities, then the Court is going to follow the ol' Pike V. Bruce Church balancing act (impact on interstate commerce v. state's interest and putative local purpose - in the present case, an orderly market and revenue collection). Swedenburg could succeed if she can show that New York's importation law actually disfavors her winery to the benefit of in-state wineries, and the state has no legitimate interest in exercising its police powers in this matter. It hink the Court is going to have to ignore a lot of historical precedent to arrive at that conclusion.

Posted by: spd rdr at December 13, 2004 05:42 PM

What good is a living breathing constitution if it can't get drunk.

Posted by: KJ at December 14, 2004 10:36 AM

What good is living and breathing if you can't get drunk?

Posted by: Masked Menace© at December 14, 2004 11:02 AM

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