best buy microsoft excel 2003 buy windows server 2008 buy powerpoint product key best price outlook 2007 download cheap autocad 2008 lt buy windows server 2008 standard buy norton ghost 12.0 buy windows 7 home premium online military discount adobe photoshop purchase microsoft project 2003 buy windows 7 professional academic buy intuit quicken 2010 purchase microsoft office 2003 professional best price pinnacle studio 12 software purchase ms excel
    discount adobe photoshop cs4 extended buy outlook 2010 download buy mac os x 10.6 purchase microsoft outlook 2003 cheap cs4 master collection for mac buy adobe fireworks 8 student discount photoshop cs3 buy windows 7 amazon buy microsoft office suite buy vmware fusion 3 cheap buying mac os x mountain lion to download buy revit 2011 architecture cheapest rosetta stone swedish buy photoshop cs2 upgrade buy windows xp calgary

Preliminary injunction in Texas is a temporary truce

The recent preliminary injunction entered by agreement in Wine Country Gift v. Steen is only a temporary truce. Both sides are reportedly preparing for a contest over the final judgment, while the delivery companies and potential retailer-shippers attempt to figure out what the requirement that shipments be by �a carrier permitted by Texas Alc. Bev. Code Ch. 43� means in context.

Wine Country demonstrates that we are still struggling to understand the implications of Granholm. Much of the difficulty arises from what appears on superficial reading as an inconsistency in the majority position. The result in the case, like most of the text of the majority opinion, is decidedly hostile to location requirements. Nevertheless, the majority quotes from the Scalia opinion in the no-majority (4-4-1) case, North Dakota v. U.S., which refers to a 21st Amendment right to require all wine to pass through an �in-state wholesaler.�

North Dakota may have replaced Young�s Market as the repository of sacred text for adherents of old-time 21st Amendment theory. The subject quotation, however, is merely obiter dicta in Granholm and therefore not part of the case as a binding precedent. Mr. Justice Thomas excoriates the majority for what he takes as their obtuse failure to see the contradiction between that dictum and the actual holding of the case, which clearly finds the 21st Amendment inadequate as a basis for imposing in-state location requirements on wineries shipping to consumers. Nonetheless, careful reading of the majority opinion strongly suggests that North Dakota stands only for the right to require a three-tier system, and not a right to refuse distribution licenses to out-of-state wholesalers.

Costco has already resulted in a statutory change, granting out-of-state domestic manufacturers essentially the same rights as wholesalers within Washington. A similar suit is reportedly in preparation for Oregon, possibly couched broadly enough to include non-manufacturing suppliers, and another Texas suit, with a multi-state wholesaler plaintiff, is rumored.

Under Granholm, a successful plaintiff can only hope to level the playing field. The Costco court leveled down, on the theory that opening the state�s borders would be more disruptive to the entire regulatory system than would ending the local producers� self-distribution privilege -a ruling that would have put many local wineries in a serious bind had the legislature not leveled up before it became effective. A similarly inclined court could solve the Granholm problem in Wine Country by invalidating delivery rights of local retailers, leaving a legislative fix dependent on state politics. It would, however, be difficult to imagine a decree invalidating the right of local wholesalers to distribute, an activity that lies at the heart of nearly all regulatory schemes in the country. Thus, a win in court by an out-of-state wholesaler plaintiff could create a national market in supplying the retail trade and leave little room for legislatures to level down.

1 Comment

  1. Could you plese paraphrase the above in plain laymans english?

Submit a Comment

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>