The Supreme Court May Change the Way You Buy Wine

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NED VALOIS
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The Supreme Court May Change the Way You Buy Wine

#1 Post by NED VALOIS » January 13th, 2019, 9:19 pm

By Eric Asimov

Jan. 10, 2019
...The justices will hear oral arguments in a contentious case involving whether consumers can order from out-of-state wine shops. ...



https://www.nytimes.com/2019/01/10/dini ... sales.html

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Re: The Supreme Court May Change the Way You Buy Wine

#2 Post by Matt Snow » January 15th, 2019, 3:21 pm

Although I agree with Clement's argument that Granholm should extend to wine retailers, I do not think this case will do so, at least not in the way Asimov anticipates and most consumers would like. After all, the reasoning in Granholm itself (which is about interstate shipping, albeit by wineries not retailers) seemingly is closer to governing the interstate retail shipping question than any reasoning would reasonably be expected to be in a case that addresses limitations on state regulation of brick-and-mortar retailers, as the Tennessee case does. The states that have refused to recognize Granholm as limiting their regulation of interstate retail shipment presumably would maintain the same position in the face of an adverse decision in the Tennessee case. I do not see a change coming until there is litigation specifically addressing interstate retail shipping (or a change in the relative lobbying power of the industry groups in question).

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Re: The Supreme Court May Change the Way You Buy Wine

#3 Post by Neal.Mollen » January 15th, 2019, 3:52 pm

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Re: The Supreme Court May Change the Way You Buy Wine

#4 Post by Matt Snow » January 15th, 2019, 5:25 pm

Thanks, Neal. Any view on the likelihood of the case actually changing interstate retail shipping rules?

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Re: The Supreme Court May Change the Way You Buy Wine

#5 Post by D@vid Bu3ker » January 15th, 2019, 5:27 pm

My bet is that it sets everything, even winery shipping, back further.
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Re: The Supreme Court May Change the Way You Buy Wine

#6 Post by Matt Snow » January 15th, 2019, 5:40 pm

D@vid Bu3ker wrote:
January 15th, 2019, 5:27 pm
My bet is that it sets everything, even winery shipping, back further.
Maybe. If counting votes on Total Wine's side, Thomas and probably Alito are hopeless and I would not be terribly enthusiastic about getting Gorsuch, or Kavanaugh, which does leave a pretty narrow window for them to win. But I also doubt there's a majority for overruling Granholm, so I'm not so worried about winery shipping. (I don't see Ginsburg or Breyer changing their positions, notwithstanding Ginsburg's loss of her mind in Wayfair, nor do I think Kagan, Roberts, or probably Kavanaugh, are sticking their necks out to overrule. So the retailers' association would have to get Sotomayor and a Kavanaugh who spent a lot of time beating his chest about stare decisis to try to appease folks on abortion.)

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Re: The Supreme Court May Change the Way You Buy Wine

#7 Post by Scott G r u n e r » January 15th, 2019, 9:13 pm

Well we know Kavanaugh likes beer... so maybe...
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Re: The Supreme Court May Change the Way You Buy Wine

#8 Post by T. Melloni » January 15th, 2019, 10:34 pm

Oral argument is scheduled for January 16.
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Re: The Supreme Court May Change the Way You Buy Wine

#9 Post by Neal.Mollen » January 16th, 2019, 4:33 am

Scott G r u n e r wrote:
January 15th, 2019, 9:13 pm
Well we know Kavanaugh likes beer... so maybe...
LOL.

I have no feeling for this. It doesn't plot on the "normal" ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state's rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don't know. It will be interesting to see.
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Re: The Supreme Court May Change the Way You Buy Wine

#10 Post by Jason T » January 16th, 2019, 5:30 am

I’m hoping that Neal’s comment about free-market thinking is what carries the day. But I fear that David’s comment about everything getting more restrictive, including winery shipping, is what we end up with.
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Re: The Supreme Court May Change the Way You Buy Wine

#11 Post by Mich@el Ch@ng » January 16th, 2019, 5:43 am

I also wonder what role the big corporations will have in pushing for this. I imagine amazon has some feelings about this.
Neal.Mollen wrote:
January 16th, 2019, 4:33 am
Scott G r u n e r wrote:
January 15th, 2019, 9:13 pm
Well we know Kavanaugh likes beer... so maybe...
LOL.

I have no feeling for this. It doesn't plot on the "normal" ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state's rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don't know. It will be interesting to see.

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Re: The Supreme Court May Change the Way You Buy Wine

#12 Post by Neal.Mollen » January 16th, 2019, 5:46 am

Mich@el Ch@ng wrote:
January 16th, 2019, 5:43 am
I also wonder what role the big corporations will have in pushing for this. I imagine amazon has some feelings about this.
Neal.Mollen wrote:
January 16th, 2019, 4:33 am
Scott G r u n e r wrote:
January 15th, 2019, 9:13 pm
Well we know Kavanaugh likes beer... so maybe...
LOL.

I have no feeling for this. It doesn't plot on the "normal" ideological continuum. And only 2(?) current justices were on the Granholm court. The formalists have a slight tendency towards state's rights and against expansion of the dormant commerce clause, but also tend to be free market thinkers. So I really don't know. It will be interesting to see.
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Re: The Supreme Court May Change the Way You Buy Wine

#13 Post by Matt Snow » January 16th, 2019, 7:45 am

Well, the beer wholesalers have predictably come down on the side of the regulation, to the extent Kavanaugh cares about that. :)

The beer and wine wholesalers and their pet nonprofits are the primary business interests represented in the amicus briefs, which as Neal observes are generally the only way outside interests have an influence on these decisions. (There is also something called KBHC Partners II, Ltd., which oddly does not say what it is or why it is interested in the case in its amicus statement.)

There are 3 current members of the court who were there for Granholm: Thomas, who consistent with his view that the Commerce Clause has no negative aspect dissented in Granholm and will not subscribe to an opinion here that strikes down the regulation on Commerce Clause grounds; Breyer, who is generally a reliable vote against discrimination under the Commerce Clause, and who agreed in Granholm that it limited the 21st Amendment's general grant to the states of regulatory authority over alcoholic beverages; and Ginsburg, who voted with the majority in Granholm but has been less predictable in other Commerce Clause cases, particularly in the tax area.

One aspect of the case of which I had not been aware before scanning the briefs of the amici this morning is that the second respondent (the family that got the Total Wines franchise and was going to operate the store) is arguing that the residency requirement should be held unconstitutional on an alternative ground, under the right to travel protected by the 14th Amendment Privileges & Immunities Clause. An amicus law professor is raising a parallel argument under the Article IV Privileges & Immunities Clause. Those arguments might provide a basis to affirm for some justices who are dormant Commerce Clause skeptics or who have a more permissive view of the level of discrimination permitted by the 21st Amendment.

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Re: The Supreme Court May Change the Way You Buy Wine

#14 Post by Scott G r u n e r » January 16th, 2019, 7:54 am

I think it would be obvious that the wholesalers (beer, wine, spirits) will always fight against the consumer and the free market. Regulations and direct shipping restrictions built their mansions.
//Cynic

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Re: The Supreme Court May Change the Way You Buy Wine

#15 Post by Neal.Mollen » January 16th, 2019, 8:09 am

Matt Snow wrote:
January 16th, 2019, 7:45 am
Well, the beer wholesalers have predictably come down on the side of the regulation, to the extent Kavanaugh cares about that. :)

The beer and wine wholesalers and their pet nonprofits are the primary business interests represented in the amicus briefs, which as Neal observes are generally the only way outside interests have an influence on these decisions. (There is also something called KBHC Partners II, Ltd., which oddly does not say what it is or why it is interested in the case in its amicus statement.)

There are 3 current members of the court who were there for Granholm: Thomas, who consistent with his view that the Commerce Clause has no negative aspect dissented in Granholm and will not subscribe to an opinion here that strikes down the regulation on Commerce Clause grounds; Breyer, who is generally a reliable vote against discrimination under the Commerce Clause, and who agreed in Granholm that it limited the 21st Amendment's general grant to the states of regulatory authority over alcoholic beverages; and Ginsburg, who voted with the majority in Granholm but has been less predictable in other Commerce Clause cases, particularly in the tax area.

One aspect of the case of which I had not been aware before scanning the briefs of the amici this morning is that the second respondent (the family that got the Total Wines franchise and was going to operate the store) is arguing that the residency requirement should be held unconstitutional on an alternative ground, under the right to travel protected by the 14th Amendment Privileges & Immunities Clause. An amicus law professor is raising a parallel argument under the Article IV Privileges & Immunities Clause. Those arguments might provide a basis to affirm for some justices who are dormant Commerce Clause skeptics or who have a more permissive view of the level of discrimination permitted by the 21st Amendment.

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I would not expect the court to take on the 14th A arguments. They were not within the question presented and typically the court will not reach out and decide a case on a ground not advanced by the parties
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Re: The Supreme Court May Change the Way You Buy Wine

#16 Post by cjsavino » January 16th, 2019, 11:45 am

Posner posted thus

"Granholm was not just about producers"-Justice Sotomayor today in the US Supreme Court oral arguments. I will have more to talk about, but one thing is clear...Tennessee Retailers vs Blair is NOT just about a TN residency requirement. The court will decide if Granholm applies to retailers, and I like our chances...why? because it is the correct answer!
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Re: The Supreme Court May Change the Way You Buy Wine

#17 Post by Mich@el Ch@ng » January 16th, 2019, 11:55 am

From what I can tell as a non-lawyer, Sotomayor (and Alito) went after Dvoretzky.

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Re: The Supreme Court May Change the Way You Buy Wine

#18 Post by Neal.Mollen » January 16th, 2019, 12:01 pm

Very very difficult to tell with any degree of confidence how the vote will break based on questions asked at argument.
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Re: The Supreme Court May Change the Way You Buy Wine

#19 Post by Neal.Mollen » January 16th, 2019, 12:02 pm

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Re: The Supreme Court May Change the Way You Buy Wine

#20 Post by Alan Rath » January 16th, 2019, 12:54 pm

Every time I read through one of these transcripts, I'm more and more depressed by the byzantine house of cards that the legal system continues to construct.

One can only hope that the justice's ears perk up when hearing Alito's question: "What is the basis for thinking that the purpose of or a purpose of Section 2 of the Twenty-First Amendment was to authorize the states in this one area, dealing with alcohol, to engage in protectionist activities that wouldn't be permitted with respect to any other commodity?"

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Re: The Supreme Court May Change the Way You Buy Wine

#21 Post by Alan Rath » January 16th, 2019, 12:58 pm

And Kavanaugh may actually come to the rescue:

"When you say virtually complete authority, and you've said several times the point of the Twenty-First Amendment, the purpose of the Twenty-First Amendment, the problem that I'm having in thinking about this is the text -- the text of the Twenty-First Amendment does not support that, as I read it. You mentioned delivery or use, but it doesn't just say the states have complete authority over delivery or use. It's talking about the transportation or importation into any state. And why isn't that most naturally read to allow states to remain dry and, therefore, ban transportation or importation but not to otherwise impose discriminatory or, as Justice Alito says, protectionist regulations?"

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Re: The Supreme Court May Change the Way You Buy Wine

#22 Post by Mike Evans » January 16th, 2019, 1:06 pm

cjsavino wrote:
January 16th, 2019, 11:45 am
Posner posted thus

"Granholm was not just about producers"-Justice Sotomayor today in the US Supreme Court oral arguments. I will have more to talk about, but one thing is clear...Tennessee Retailers vs Blair is NOT just about a TN residency requirement. The court will decide if Granholm applies to retailers, and I like our chances...why? because it is the correct answer!
I’m not sure that either a wine retailer or an erratic former Seventh Circuit judge would be my chosen source for analysis of how the Supreme Court is likely to rule on a fairly tricky constitutional question. While I hope Posner (whichever one this is) is correct, I don’t have any particular reason to believe that he is.

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Re: The Supreme Court May Change the Way You Buy Wine

#23 Post by Neal.Mollen » January 16th, 2019, 1:41 pm

Mike Evans wrote:
January 16th, 2019, 1:06 pm
cjsavino wrote:
January 16th, 2019, 11:45 am
Posner posted thus

"Granholm was not just about producers"-Justice Sotomayor today in the US Supreme Court oral arguments. I will have more to talk about, but one thing is clear...Tennessee Retailers vs Blair is NOT just about a TN residency requirement. The court will decide if Granholm applies to retailers, and I like our chances...why? because it is the correct answer!
I’m not sure that either a wine retailer or an erratic former Seventh Circuit judge would be my chosen source for analysis of how the Supreme Court is likely to rule on a fairly tricky constitutional question. While I hope Posner (whichever one this is) is correct, I don’t have any particular reason to believe that he is.
By "erratic" I assume you mean bat-shit crazy.
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Re: The Supreme Court May Change the Way You Buy Wine

#24 Post by Alan Rath » January 16th, 2019, 1:45 pm

Damn. The court either has to throw out almost all regulation with respect to alcohol, including 3-tier, interstate shipping, residency requirements, etc., or throw up its hands and say we're just going to continue to allow the inertia of blatant discrimination and protectionism because it's too much to change.

That poor "respondent's" lawyer was between a rock and a hard place, arguing for his client while trying to avoid taking responsibility for pulling the keystone from the foundation of all alcohol regulation.

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Re: The Supreme Court May Change the Way You Buy Wine

#25 Post by D@vid Bu3ker » January 16th, 2019, 1:48 pm

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Re: The Supreme Court May Change the Way You Buy Wine

#26 Post by Mich@el Ch@ng » January 16th, 2019, 2:14 pm

Or they could rule in a very narrow manner and say that that particular statute is unconstitutional.
, which the Tennessee attorney general basically agreed with.

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Re: The Supreme Court May Change the Way You Buy Wine

#27 Post by Alan Rath » January 16th, 2019, 2:27 pm

Mich@el Ch@ng wrote:
January 16th, 2019, 2:14 pm
Or they could rule in a very narrow manner and say that that particular statute is unconstitutional.
, which the Tennessee attorney general basically agreed with.
That was my "or". But it seems unlikely they will find in favor of Tennessee.

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Re: The Supreme Court May Change the Way You Buy Wine

#28 Post by Bruce Leiser_owitz » January 16th, 2019, 3:25 pm

Here is a link to today's oral argument:

https://www.supremecourt.gov/oral_argum ... 6_i4ek.pdf

I think there will be a LOT of discussion within the Court about just how narrow/broad the ruling should be.

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Re: The Supreme Court May Change the Way You Buy Wine

#29 Post by Tomcwark » January 18th, 2019, 1:19 pm

The first thing that I think has to be noted is that I'm not sure there is any possible way the Court can rule on this case without saying whether or not the non-discrimination principles in Granholm applies to retailers. Clearing that up is a good thing.

Second, I think it's entirely doable that the Court could reaffirm the constitutionality of a state-based three tier system (which they will define), while at the same time noting that the 21st Amendment did not give the states the constitutional power to discriminate against interestate commerce for the purposes of protecting in state interests.

Finally, it's very doubtful this case will roll back winery shipping at all. It's also doubtful that the case will directly address the impact on retailer interstate shipping. However, the holding in the case could very well give specific guidance to lower courts on how to rule on retailer wine shipping cases.
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Re: The Supreme Court May Change the Way You Buy Wine

#30 Post by Tomcwark » January 18th, 2019, 1:24 pm

By the way, the audio recording of he oral arguments are available now: https://www.supremecourt.gov/oral_argum ... 2018/18-96
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Re: The Supreme Court May Change the Way You Buy Wine

#31 Post by D@vid Bu3ker » January 18th, 2019, 6:41 pm

Thanks for your perspective Tom.
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Re: The Supreme Court May Change the Way You Buy Wine

#32 Post by Jason T » January 22nd, 2019, 8:00 am

So what happens next with this case? When will we know more?
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Re: The Supreme Court May Change the Way You Buy Wine

#33 Post by Tomcwark » January 22nd, 2019, 8:04 am

Jason,

It's now in the hands of the Justices. It's likely they will issue an opinion sometime in late spring. Additionally, there are at least two wine-related shipping cases sitting in the lower courts (one in Michigan Federal District Court, another in the Seventh Circuit Court of Appeals concerning Illinois shipping laws) that are likely to be impacted by the outcome of the case.
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Re: The Supreme Court May Change the Way You Buy Wine

#34 Post by GregT » January 22nd, 2019, 8:34 am

I think the wholesalers lose on this claim:
"whole point of the Twenty-First Amendment was to constitutionalize the pre-Prohibition powers, which included the power to discriminate against out-of-state interests. "

But Phillips for the other side doesn't come off too well.

Two hopeful signs -

1)the justices seemed to understand that Amazon is next, i.e. that online selling is going to be the next case and if they want to avoid hearing another case, they may even address online wine selling and shipping in their decision.

2) the questions don't seem to break down along party lines or the "morality" of alcohol
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Re: The Supreme Court May Change the Way You Buy Wine

#35 Post by Kirk.Grant » January 22nd, 2019, 2:13 pm

So I got an email about a recently decided court case from a retailer...did this one get decided too? Or were they referencing another case?
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Re: The Supreme Court May Change the Way You Buy Wine

#36 Post by Tomcwark » January 22nd, 2019, 2:21 pm

Kirk,

Two cases were decided relatively recently. One in IL and one in MI. The Supreme Court case recently heard will impact both of those cases if it is one of those you are referring to.

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Re: The Supreme Court May Change the Way You Buy Wine

#37 Post by Kirk.Grant » January 22nd, 2019, 2:23 pm

The law will now require collection of sales tax for all states...it may only apply in DC though?
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Re: The Supreme Court May Change the Way You Buy Wine

#38 Post by A.Gillette » January 22nd, 2019, 5:37 pm

I just read the transcripts. My bet is that the court decides the very easy case in front of it now and leaves the retail shipping question to be decided when the court is presented with that question in a subsequent case. At least two of the justices seem concerned about giving states the ability to meaningfully implement the three-tier system but who knows if that’s enough to overcome the dormant commerce clause argument. It’s very easy to see that case going in favor of the protectionist wine lobby.

Kavanaugh’s comment about the proper interpretation of the 21st amendment (quoted in a post above) strikes me as totally goofy. If a particular state just wants to be dry, it doesn’t have to regulate transport and shipment. It can just make possession illegal and shipment and transport into the state are automatically dead.
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Re: The Supreme Court May Change the Way You Buy Wine

#39 Post by GregT » January 22nd, 2019, 8:20 pm

But the amendment doesn't quite give them the power to make possession illegal -

"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."


I guess they'd get mileage out of "delivery or use", but I don't see any state imposing a ban at this point.
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Re: The Supreme Court May Change the Way You Buy Wine

#40 Post by Tomcwark » January 22nd, 2019, 8:41 pm

A.Gillette wrote:
January 22nd, 2019, 5:37 pm
I just read the transcripts. My bet is that the court decides the very easy case in front of it now and leaves the retail shipping question to be decided when the court is presented with that question in a subsequent case. At least two of the justices seem concerned about giving states the ability to meaningfully implement the three-tier system but who knows if that’s enough to overcome the dormant commerce clause argument. It’s very easy to see that case going in favor of the protectionist wine lobby.
Those defending the residency requirement argued that as long as a state long does not discriminate against products or producers, the state was at liberty to pass any law, even if it was purely for protectionist purposes. The key here is not discriminating against products and producers. For 13 years the protectionists have been arguing that the non-discriminatiion principles outlined in the Granholm decision only apply to products and producers, but not to retailers. The first thing that came out of Justice Sotomayor's mouth at oral arguments was, "we didn't mean that", to paraphrase. Or, put another way, the non-discrimination principles that were outlined in Granholm applied to retailers too. Based on this finding alone, the TN residency requirement must be overturned if four other justices agree with Sotomayor.

This is the easy part of the coming decision in my view. And the justices could stop right there. If they did, without any other explanation, then the direct shipping cases now waged against IL and MI would be decided against the state. The bans against retailer shipping would be overturned. And frankly, so would such bans in nearly any other state.

The "subsequent cases" that were referred to by Gorsuch and Kagen was them thinking about the shipping cases in the lower courts. Kagen came right out and said it to the attorney for Total Wine, who wants a very narrow decision: How can we rule in your favor (overturn the residency requirement) without also ruling in favor of the next case (read: shipping case). Gorsuch was more on the nose when he referenced "the amazon of wine".

Personally, I think it would be judicial malpractice if the Court ruled in favor of Total and didn't at the same time provide a series of findings explaining how and why they came to that decision and in the process solved the problem for the lower courts.
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Re: The Supreme Court May Change the Way You Buy Wine

#41 Post by A.Gillette » January 23rd, 2019, 5:23 am

I can’t see how it would be judicial malpractice to hear the case on retail interstate shipping. In fact, despite my desire for easier access to wine, i think it’s probably the right thing to do. Granholm is pretty clear. The 21st amendment doesn’t protect states against the dormant commerce clause. That means that the discriminatory statute is unconstitutional unless it advances a legitimate local purpose that cannot adequately be served by reasonable non-discriminatory measures. In Granholm, the states’ measures failed that test, but that case wasn’t about retail. And in the current case, the state of Tennessee won’t even put forth a reasonable basis and won’t defend the statute. The states simply conceded that the statute is purely protectionist, so you have the retailers arguing a position that seems totally at odds with Granholm.

But a retail shipping case is different. States would likely line up to argue a legitimate interest in preserving the three-tier system. It seems totally reasonable to let the states make their case and to let interested third parties submit briefs. It’s a very different case from Granholm or the Tennessee case.

I suppose one could argue that Granholm sets such a high bar that the states could never win, but that’s just conjecture and... Granholm was 5-4. In any event, letting the states make their case seems totally reasonable.
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Re: The Supreme Court May Change the Way You Buy Wine

#42 Post by Tomcwark » January 23rd, 2019, 6:40 am

A.Gillette wrote:
January 23rd, 2019, 5:23 am
But a retail shipping case is different. States would likely line up to argue a legitimate interest in preserving the three-tier system. It seems totally reasonable to let the states make their case and to let interested third parties submit briefs. It’s a very different case from Granholm or the Tennessee case.
Alex,

I think this is where we disagree. I don't think retailer shipping is different. In Granholm the issue didn't concern wineries producing anything. It concerned producers retailing something. Additionally, there is nothing in Granholm that explicitly or in dicta that limits the holdings to producers. This view is come to by cherry picking various lines of the decision from different places in the decision.

That said, the Three Tier System does come into play as you say. One of the things that concern me is that for the purposes of constitutional interpretation the three tier system has never been defined by the Court. What exactly is "unquestionably legitimate". Advocates of discriminatory shipping laws have implied that a state's entire body of alcohol regulations fall under the "three tier system". I'd like the justices attack this question. Furthermore, I'd like to see the justices confirm that what's unquestionably legitimate is a state's regulatory structure that includes separate licenses for producers, wholesalers and retailers for the purpose of bringing products to the retail sale within the state. Producers and retailers outside a state with a three tier system are not part of that state's three tier system, and therefore protectionist and discriminatory laws that impact interstate commerce are not unquestionably legitimate. Now, if the Court wants to hold that a state must justify these laws in a way that shows the state interest cannot be achieved by any other less restrictive means, I'd be happy with that too because I think we know that the state loses in that analysis.

I'll say one more thing about what the Court will do in the present case: I don't think the court can find a way to give Total a victory in the case without also giving those people challenging protectionist shipping laws in the lower courts considerable aid in their efforts because in order to find for Total, the Court must at least find that state laws concerning the retail tier are subject to the power of the dormant commerce clause, in the same way that laws concerning the producer tier were subject to restrictions imposed by the dormant commerce clause.

Tom...
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Re: The Supreme Court May Change the Way You Buy Wine

#43 Post by A.Gillette » January 23rd, 2019, 7:09 am

I agree on the commerce clause point in your third paragraph.

I guess I just don't understand your argument that retail shipping isn't different from Granholm.

In Granholm, the in state wineries were subject to an exception from the three tier system and that exception wasn't available to out of state wineries. So two big differences from a retail shipping case. First, the statutes at issue in Granholm treated in and out of state interests differently on their face. And the states will argue that with respect to direct shipping at retail, unlike in Granholm, that both in and out of state interests are subject to the same set of rules: the three-tier system. Out of state sellers can sell through an in-state distributor. Second, by definition, in Granholm the states weren't arguing whether they had a legitimate interest in preserving the three-tier system because the three-tier system wasn't at issue with respect to the in-state interest. Rather, the question was whether it is discriminatory to apply an exception to the three-tier system only to in-state interests. So that means that the analysis called for by Granholm - whether or not the statute advances a legitimate purpose that cannot be served by non-discriminatory measures - was never considered in the case of retail shipping.

They sound like very different cases to me.

A
Alex

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Re: The Supreme Court May Change the Way You Buy Wine

#44 Post by PHuff » January 23rd, 2019, 7:18 am

An interesting article on this case:

https://theintercept.com/2019/01/23/tot ... -congress/
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Re: The Supreme Court May Change the Way You Buy Wine

#45 Post by Tomcwark » January 23rd, 2019, 7:28 am

A.Gillette wrote:
January 23rd, 2019, 7:09 am
I agree on the commerce clause point in your third paragraph.

I guess I just don't understand your argument that retail shipping isn't different from Granholm.

In Granholm, the in state wineries were subject to an exception from the three tier system and that exception wasn't available to out of state wineries. So two big differences from a retail shipping case. First, the statutes at issue in Granholm treated in and out of state interests differently on their face. And the states will argue that with respect to direct shipping at retail, unlike in Granholm, that both in and out of state interests are subject to the same set of rules: the three-tier system. Out of state sellers can sell through an in-state distributor. Second, by definition, in Granholm the states weren't arguing whether they had a legitimate interest in preserving the three-tier system because the three-tier system wasn't at issue with respect to the in-state interest. Rather, the question was whether it is discriminatory to apply an exception to the three-tier system only to in-state interests. So that means that the analysis called for by Granholm - whether or not the statute advances a legitimate purpose that cannot be served by non-discriminatory measures - was never considered in the case of retail shipping.

They sound like very different cases to me.

A
Alex,
In Granholm, the state and wholesalers all argued that the wineries were undertaking a direct assault upon the three tiers system. The Court found that wasn't the case. Also, the state and wholesalers argued there was no discrimination since out of state wineries were able to get to get a winery permit just like in-state wineries had done. Also, out-of-state retailers may NOT sell through an in-state distributor. A state's wholesalers are prohibited from procuring wine from an out-of-state retailer.

Additionally, the allowance for an in-state retailer to take internet orders and use a common carrier to deliver wine to consumers without a face to face transaction could and has been called an exception to a three tier system. This takes us back to the important question of what is this unquestionably legitimate three tier system?
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Re: The Supreme Court May Change the Way You Buy Wine

#46 Post by Tomcwark » January 23rd, 2019, 7:34 am

PHuff wrote:
January 23rd, 2019, 7:18 am
An interesting article on this case:

https://theintercept.com/2019/01/23/tot ... -congress/
This story suggests that the 21st amendment allows states to pass literally any law for any reason concerning alcohol and that Granholm was wrongly decided. Moreover, it suggests that if Total wins states will no longer be able to regulate alcohol. Finally it suggests that if Total wins, amazon and walmart will be able to direct ship to consumers in states.

This is not reporting. It's an opinion piece. I'm big fan of opinion pieces, but you need to remember that they are written to persuade, into inform.
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Re: The Supreme Court May Change the Way You Buy Wine

#47 Post by Matt Snow » January 24th, 2019, 11:37 am

Tomcwark wrote:
January 23rd, 2019, 7:34 am
PHuff wrote:
January 23rd, 2019, 7:18 am
An interesting article on this case:

https://theintercept.com/2019/01/23/tot ... -congress/
This story suggests that the 21st amendment allows states to pass literally any law for any reason concerning alcohol and that Granholm was wrongly decided. Moreover, it suggests that if Total wins states will no longer be able to regulate alcohol. Finally it suggests that if Total wins, amazon and walmart will be able to direct ship to consumers in states.

This is not reporting. It's an opinion piece. I'm big fan of opinion pieces, but you need to remember that they are written to persuade, into inform.
It is an interesting piece, for sure -- sprinkled with facts but, as Tom says, pretty heavily peppered with opinion, starting off the bat from the title ("The Monopolist in the House" does not exactly carry the ring of journalistic neutrality). Understanding that the Intercept can't stand any Democrat to the right of Lenin, it is odd that the columnist picks on this litigation as a way to slam Rep. Trone, given its lack of any apparent connection to any political position he has taken.

-- Matt

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