I feel very confident that the legal issues raised in this litigation will reappear in another case in the future.

(earlier post)   10th Circuit Reverses and Remands US Airways Case Back To District Court

The 10th Circuit today reversed and remanded the district court’s decision which had ruled in favor of New Mexico.    When the district court gets this case again, it is instructed to balance both the state interests under the 21st Amendment and the federal interests under the Federal Aviation Act.   It is unclear if any party will try to appeal this to Supreme Court at this stage.  The 10th Circuit opinion can be found here.

(earlier post)

Oral Argument Set for September 20th in the 10th Circuit Appeal of USAIR Case

The oral argument of US Air’s appeal is set for September 20th in Denver before the 10th Circuit.   In a twist, the US Government has pushed to be allowed to participate in the oral argument and has been granted time. The motion the federal government filed to participate in oral argument is here.

PREVIOUS POST

Appellate Briefs have been filed in the 10th Circuit.   Retailers, Mothers Against Drunk Driving, State AGs, US Justice Dept, three of the past  U.S. Solicitor Generals representing corporate interests , the list is long!

Four briefs have been filed in support of the State of New Mexico by:
-American Beverage Licensees , State AGs, Mothers Against Drunk Driving and Wine & Spirits Wholesalers of America

The state of New Mexico appellate brief is here.

The State AGs brief notes that the position of the USAir and appellants that they do not need to follow New Mexico alcohol laws would also support the amazing position that US Air could serve drinks to 11 year olds.

Four briefs have been filed in support of US Airways by:
-Air Transport Association of America, Association of Flight Attendants, Ten Former Secretaries of the DOT, and The United States

(The below was written after the trial stage and before 10th Circuit filings)

If you sell liquor to consumers in New Mexico, you need to be licensed by the state to do so. Period.

United States District Judge M. Christinia Armijo has rejected US Airways claims that federal aviation statutes and regulations (specifically the Airline Deregulation Act and the Federal Aviation Act) preempt New Mexico laws requiring every person selling alcohol to secure a public service license.  In her decision Jude Armijo noted there was no basis to assume Congress intended federal law to regulate alcohol service and that state laws are not preempted.    She noted:

Needless to say, the stakes are pretty high with this case and I personally expect an appeal by the Plaintiff in this case.    New Mexico is in the 10th Circuit.

This case further provides a strong rejection to the attempts to allow revisionist history to claim that the 21st Amendment essentially only allows a state to decide wet or dry issues.  The complaint implied that the 21st Amendment  allows a state “ONLY” to regulate the transportation or importation.  That very limited view of the 21st Amendment will not prevail.

Briefs have been filed in this case.

(Earlier Post)    Supreme Court Asked to Consider Dormant Commerce Clause Case.

Direct TV has filed a petition for the Supreme Court to overrule the Ohio Supreme Court on dormant commerce clause grounds.  The Ohio Supreme Court upheld an Ohio law that taxed cable at lower rates  than satellite television.   Since the cable industry employs more Ohio residents than satellite TV it is alleged by the petitioners that this method of taxation is a protectionist violation of the dormant commerce clause.   The state of Ohio disagrees in its brief in opposition.   They rephrase the question “May a state, consistent with the Commerce Clause, tax satellite television services differently from cable broadcast services, given  their different methods of operation and the different regulatory sttructure that applies to each? 

Interestingly, the Specialty Wine Retailers Association filed an amicus brief in support of the petitioners claiming that “the wine and satellite TV industry are just the tip of the iceberg” for oppressive tax regimes by the states if the Ohio ruling stands.  Other amicus briefs  supporting the petition were filed by law professors and the National Taxpayers Union.

The United States Supreme Court is currently in its summer recess.  No oral arguments are scheduled until October.  They have had a long summer to where possible cases for consideration accumulated. No conferences are scheduled until Monday, September 26.   At that conference, the Justices will select cases for review from the summer lists.  Given the backlog of cases since their last conference in May, it is possible some decisions may not be made at the conference on September 26. 

Thanks to Scotusblog  for the heads up on the developments in this case. 

(Earlier Post)  Ohio Supreme Court Case With Commerce Clause Implications

Thanks to David Raber of Ohio for catching  and forwarding this one. 

The Ohio Supreme Court has upheld a state sales tax for satellite TV providers that cable competitors don’t have to pay, rejecting arguments from the satellite industry that the tax is unfair and unconstitutional.     In the 5-2 decision rendered 12/27/10, the Court ruled that the 2003 tax does not violate the U.S. Constitution’s Commerce Clause because the tax is based on differences between the nature of the businesses and does not favor in-state interests at the expense of out-of-state interests.

The Granholm and Bacchuscases are distinguished page 13 of the decision.   There was an amicus curiae brief filed by the Specialty Wine Retailers Association urging reversal which is attached here.   The brief waves the flag of internet regulation freedom. It was interesting to note the brief “blamed” certain state alcohol laws on other wineries or retailers for a change instead of  the supposed unchecked wholesaler power in the state house;  ”location specific” language-i.e., “in person” or “on the premises”-and are enacted for the sole purpose of favoring local wineries at the expense of out-of-state wineries, states will defend these statutes as doing nothing more than distinguishing between two “modes” of selling wine to consumers.”

The Supreme Court decision leaves in place the ruling of the 5th circuit upholding the Texas ruling that the alcohol licensing scheme by Texas is consistent with the 21st Amendment and previous ruling by the Supreme Court. The rejected petition challenged the Supreme Court’s statement that the three-tier system is unquestionably legitimate but could not cite to a circuit split as the 2nd circuit also ruled similar to the 5th.

This is the fourth denial of cert by the Supreme Court since the 2005 Granholm decision. (4th,6th, 7th and now 5th)

This probably means a new lawsuit in another state by plaintiffs trying to get back to the Supreme Court. Perhaps the 8th or 11th circuits will join the rest of the circuits as they are the only circuit courts spared alcohol litigation in the past five years.

Although the Supreme Court passed on this one, the next petitions could be coming later this year out of the 3rd Circuit case in New Jersey. (see below postings)

(Earlier Post) Another Monday, another day of no decision from last Friday’s conference with the Supreme Court.   This is the second consecutitve week where the Supreme Court had this case listed, but no order announced the following Monday.  Not sure whether I should read more into this (dissentin ranks?)  or just the volume of cases before the Supreme Court means they just haven’t gotten to this case yet.   Here is the list of today’s orders.   If they update the docket for this case it will be listed here.

(Earlier Post) Supreme Court to Decide Whether to Grant Cert on February 25

Looks like we will know next Monday whether the Supreme Court will hear this case despite the lack of a circuit split.   Here is the docket for the case.

(EARLIER POST)  Reply Brief In, Wine Country Matter in the Hands of the Supreme Court

The Supreme Court orders can be found here.

Well the briefing is all done.  Click here for the reply brief by petitioners in Wine Country.  Nothing new rather than repeat of their claim that their expansive view of Granholm is not being followed by the courts.  I must note that there still is no circuit split to back up their expansive view of Granholm.    The matter now is in the hands of the justices who will decide at some point in late February whether to grant cert, deny cert or ask for Texas to file a response.

(Earlier Post)  State Waives Filing, Respondents File In Opposition to Cert

The State of Texas waived a filing in response to the cert petition.     However, the respondents filed opposition to the cert petition.   Their brief can be found here.   The respondent’s brief concentrates on the basic and points out what the petitioners don’t like to acknowledge; 1) there is nothing close to a circuit split here warranting SCOTUS intervention and 2)  the courts below have followed Supreme Court direction in their opinions.    Expect more trees to be killed by the petitioners to try to keep their hopes alive.

(Earlier Post )-   Two Amicus Briefs Filed In Support of Cert. Petition In Wine Country/Siesta Village Matter

Happy New Year!    Sorry for the delay but two amicus briefs were filed in support of the plaintiffs seeking to reverse the 5th Circuit’s ruling for Texas.   One brief I’ll classify as the Nostalgic FTC Alumni Association was paid for by the Family Winemakers Association of California.  You will recall from the below note on the 1st Circuit case, the Family Winemakers Association of California is represented by Kirkland and Ellis, the same law firm who filed this pending cert petition.  In this brief which you can read for yourself here, former FTC staffers seek to highlight their various “research”  (that is often rolled out as not official FTC work) and imply that all state alcohol regulations are the product of big bad special interest wholesaler lobbying at the state level so state laws should be struck if it gets in the way of new business models.   I oversimplify of course but you can read for yourself.

The other brief was paid for by the Specialty Wine Retailers Association whose members include the plaintiff Wine Country.  It claims the 5th Circuit really messed things up and threaten to unravel the entire free world, again I may be overstating things but some of the rhetoric approaches those claims.   It was written by Bruce Hay, a former law clerk to Justice Scalia which probably explains all the repeated references to concurring opinions by Justice Scalia in their brief.  I guess they are trying to keep him on their side.   Also it is interesting to note that Mr. Hay and Einer Elhauge work for the same company Legal Economics, Inc. (http://www.legal-economics.com/) when they are not teaching Harvard law students.  In fact, just a few months ago, Mr. Elhauge testified before the House Judiciary Committee on behalf of the Beer Institute and noted that there was no real conflict in this area of law and suggested that fears of litigation in the retail shipping case were overblown:

“Challenges have also been brought against state laws that make direct sales to consumers illegal for out-of-state retailers but legal for in-state retailers. However, even though these state laws are facially discriminatory, they have actually been upheld by all three appellate federal circuits to consider the question, on the ground that favoring in-state retailers is inherent to the states’ Twenty-first Amendment authority to define who constitutes a retailer within the three tier system—a system whose legal validity has been unquestioned in the courts. True, one district court reached the opposite conclusion based on the law’s facial discrimination, but that district court did not consider the connection between the state law and the three-tier system and the appeal was mooted when the legislature amended the statute. There thus does not appear to be any final judgment that prohibits such statutes and little risk they would be invalidated, and in any event any nominal conflict in case law appears to have been decisively resolved in favor of the three circuits that sustained such laws.” (emphasis mine)

So what is next?   The Supreme Court has a cert and two amicus to consider.  The parties kill acres of trees trying to argue why the case should be heard and making crystal clear water muddy.  However, as Professor Elhauge has noted, there is no conflict in the courts that needs Supreme Court clarification.   For next steps, the State and intervenors could not file a response, or  they could file a response, or they can wait for the Supreme Court to tell them to respond.  A response at the end of the month is possible or one in February.   If so the earliest the Supreme Court could give the thumbs up to hear or deny this case is probably February.  If cert granted it probably would not be heard before the end of the Supreme Court term in June.  However, I am sure there is more to this saga and we’ll report it when it does.

(Earlier Post)  Plaintiffs File SCOTUS Petition in Wine

Country/Siesta Village Lawsuit Against Texas

The answer to the question of whether there would be an appeal was given today in the form of a Petition for a writ of certiorari filed in the Supreme Court of the United States.   The Supreme Court’s website shows that the petition was filed on the last possible day for the plaintiffs.   A link can be found here.        The state has until December 22 to file a response.

Here is a copy of the petition.   Once again they try to blur the lines and claim that retailers and wineries are the same entity.  They forgot to mention that the federal government doesn’t agree with that.  For example, the wineries need to be licensed at the federal level. Retailers do not.

What are the chances of the Supreme Court taking this?   Who knows.   They should not. There is no circuit split.  The 5th Circuit opinion is well reasoned.   However, this is the last play the plaintiffs have and perhaps the Hail Mary pass will work.   Will be an interesting start to 2011.

(EARLIER POST)

Judge Fitzwater has entered the final judgment for the state of Texas in the Siesta Village matter.  What will the folks that maintain wineries = retailers do next?

(earlier post)

5th Circuit Rejects Rehearing; Texas Wins; Supreme Court Next?

The 5th Circuit has wasted little time rejecting this third bite at the apple.  In the order, no judge on the 5th Circuit asked to hear and review this case.   Like the 2nd Circuit case, the 5th Circuit noted that Granholm dealt with wineries, not retailers.  The Granholm court’s holding that the three tier system is unquestionably legitimate remains powerful and was repeatedly used by the 5th Circuit.     Now the question is, will the plaintiffs attempt to seek the Hail Mary pass of the U.S. Supreme Court?

(PREVIOUS POST)

Maybe the third time is the charm.  Not satisfied with another 5th Circuit opinion rejecting the myth that alcohol retailers are the same as alcohol producers, the Siesta Village plaintiffs filed a new motion for a rehearing for an en banc hearing for the 5th Circuit.  Click here to read the petition.    Looks like they have trotted out the old “model bill”  myth again.  (See older posts for a discussion on that issue.)

(earlier post)  5th Circuit Rules For Texas. Granholm Means Wineries, Not Retailer

Today the 5th Circuit ruled for the state of Texas and that out of state alcohol retailers do not have the same rights of  in state alcohol retailers.  The opinion can be found here. Recall a panel of the 5th Circuit ruled for Texas in January (below).   The plaintiffs appealled for a full en banc review.   Instead today the 5th Circuit  denied the en banc review,  withdrew its ruling from January 26, 2010 and substituted today’s opinion.

The court agreed with much of the 2nd Circuit’s reasoning in Arnold’s Wine v. Boyle and noted that the Granholm decision focus was on products or producers, not  all three tiers in a state’s three tier system of alcohol regulation.  It noted the similarilities of  the Texas three tier system to North Dakota’s three tier system which it noted was approved and upheld  in North Dakota v. United States, 495 U.S. 423 (1986).

I expect an appeal to the U.S. Supreme Court despite the lack of a circuit split.

(from prior posts)          Updated: The state of Texas has filed their opposition to the en banc petition by the Plantiffs. Read their opposition here.

The Plaintiffs in the Wine Country Gift Baskets/Siesta Village case are trying to get the entire 5th Circuit to hear their case in a petition filed last week.   In a press release, the Specialty Wine Retailers Association stated:  “We are concerned not only that the Fifth Circuit’s recent ruling disregarded opinions of the U.S. Supreme Court, but that it also disregarded precedent from its own cases within the Fifth Circuit,” said Tom Wark, executive director of SWRA .   Personally, I believe that this rehearing petition grossly stretches the two Fifth Circuit decisions as well as the Granholm and I am hopeful that the state will again demonstrate this succinctly to the court.

As you recall, the State of Maryland sought an en banc opinion after it lost the most recent decision at the 4th Circuit.  Similarly, Costco failed to get the entire 9th Circuit to take up its cause after it lost most of its challenge to Washington state laws.    Both requests were denied.  Rehearings en banc are rarely granted.

A win for the 21st Amendment today in the 5th Circuit.

Our read of Granholm is that the Twenty-first Amendment still gives each State quite broad discretion to regulate alcoholic beverages. The dormant Commerce Clause applies, but it applies differently than it does to products whose regulation is not authorized by a specific constitutional amendment. Regulating alcoholic beverage retailing is largely a State’s prerogative. ”

“Because of  Granholm and its approval of three-tier systems, we know that Texas may authorize its in-state, permit-holding retailers to make sales and may prohibiti out-of-state retailers from doing the same.”

The decision gives the state of Texas a clear win on all counts and joins the 2nd Circuit in rejecting the attempts to twist the 2005 Supreme Court decision in Granholm v. Heald involving wineries into an examination of state distribution and retailing laws.

The Court did caution though that it was limiting its ruling.   “We pull back from any effort to define the reach of a three-tier retailer.”

Since the National Conference of State Legislatures (NCSL) continues to have its position on direct shipping interpreted wrongly across the country, they have sought to clarify it.  Recently, they have written to one attorney  asking for clarity to avoid stating that the the full NCSL had endorsed a wine model shipping legislation.  Click here for the letter.

SUPREME COURT NOT INFALLIBLE, GRANHOLM FACT WRONG.

NBWA decided to look under the hood at one of the facts used by alcohol deregulators in the Granholm and related cases.  It seemed very odd to us that the National Conference of State Legislatures (NCSL), a group dedicated to supporting state rights, would have an alleged action of that organization used AGAINST its member states.  Justice Kennedy actually seems to believe that the NCSL developed and passed the model bill drafted by the California wineries. He cited to it two times in the Granholm case.

Because one law firm continues to imply that the NCSL passed a model bill on winery direct shipping, we asked NCSL to clarify their position.  NCSL’s clarification is attached here.  I also wrote to the law firm and asked them to correct the record in other lawsuits and prevent further confusion on the NCSL activity. The letter is here.

The Supreme Court sometimes gets things wrong.  For example, last term they did not recognize an existing death penalty statute when they said there was none for child rape in Kennedy v. Louisiana.   Like that case, the Granholm court just got the facts wrong .  Next time the court takes this up, they will have the correct facts.

NCSL does have one official position that is relevant to this debate.  In its official policy statement on the internet and electronic commerce NCSL has a section on alcohol regulation.   This statement went through the proper rules and was endorsed by the entire NCSL.  It states in relevant part:  ”Nothing in this policy statement is to be construed as limiting or affecting the right of any state to regulate alcohol according to its local norms and standards pursuant to the 21^st Amendment.”   A link to this official NCSL position is here: http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,21,633#633

In full disclosure, the law firm disagrees  and provided this response.  To quote Strother Martin, “What we have here is a failure to communicate.”

Because of this settlement, there remains a circuit conflict between 4th and 9th Circuit on issue of volume discount ban. 

Clock ticking in Maryland… Cert petition due Jan 8,2010

UPDATE: Looks like folks will be busy working over the end of the year holiday season. Maryland has until January 8 to file a cert petition in the TFWS matter. http://origin.www.supremecourtus.gov/docket/09a400.htm

The possibility of Supreme Court review of the intersection betweeen state action, 21st Amendment and the Sherman Antitrust Act increased with Maryland seeking more time to file a writ of certiorari in the TFWS case.

Maryland has sought an extension until December 9 to file its Writ.  If granted and fully briefed by the other side the earliest the court could decide to accept this case would most likely be February.   It is unclear if that would be enough time for the court to consider this case before the end of its term in June.

Obviously there is much more to be written in the TFWS saga.  Stay tuned here.   Click here for a copy of Maryland’s petition.

UPDATE:    That was quick.  The 4th Circuit said “No Thank You” to the state’s request for a rehearing en banc. According to the order no judge asked to keep this 10 year old case going.

Next step:  Maryland decides whether to appeal to the U.S. Supreme Court.

Yesterday the state of Maryland filed a petition for rehearing en banc for the 4th Circuit.   Recall this was a challenge to Maryland alcohol regulations on volume discount ban, price posting and price holding for wine and liquor.  This is an important development as it is an opportunity for the tortured 10 year old history of this case to be reviewed.   To me, certain aspects of this case were caught in a continuous cycle/rut of deference to previous rulings on narrow issues that failed to permit the judges the opportunity to comprehensively look at the entire case from start to finish.    It would be nice for the 4th Circuit to look at the entire case, not just one issue.

The Maryland Attorney General’s brief highlighted four main issues for appeal: 1) The unfair heightened scrutiny facing state alcohol regulations duly authorized by the 21st Amendment; 2) the court’s failure to sever aspects of this case and do a “minimum-damage” approach to state regulation review; 3) the court’s error in calling the Maryland system a hybrid restraint and 4) the court’s failure to properly balance the state and federal interests in regulating alcohol with other federal interests.

This briefing will continue through the summer.  It is unknown when this court will rule on this petition.   Adding to the drama is the unsettled nature of the 4th Circuit with 1/3 of the judge positions open.

Update:  TN brief below.   Supreme Court to decide whether to take this the week of September 29, 2009.

A pairing of lawyer and wine connoisseur has lead to the U.S. Supreme Court  being asked whether limitations imposed by Tennessee on the transportation or possession of untaxed alcoholic beverages violate the Commerce Clause. The question arises within the context of a larger challenge concerning Tennessee’s laws governing the wine industry. The U.S. Court of Appeals for the Sixth Circuit upheld Tennessee’s ban on the direct shipment of alcohol to consumers, but concluded that certain other challenged laws were discriminatory on their face and remanded the issues to the District Court for further proceedings.  Tennessee has subsequently amended its laws in response to the 6th Circuit.  Plaintiff Jelovsek is pressing this appeal despite the legislature’s action. In her appeal she suggestions the following questions presented:

I. Whether discriminatory and protectionist laws in Tennessee’s three-tier alcohol distribution system are immune from challenge on Commerce Clause grounds, contrary to the law of this Court and other circuits?

II. Whether the Sixth Circuit erred in failing to strike down the following provisions of state laws in violation of the Petitioner’s right of equal access to the interstate wine market as protected by theCommerce Clause:

A. The laws that require in-state residency and presence to obtain a Tennessee wholesale or retail alcohol license, which laws restrict the Petitioner’s access to a wide variety of wines offered by out-of-state vendors.

B. The law that prohibits direct shipment of wine to the Petitioner from out-of-state retailers, when the State allows him to purchase as much wine as he wants from in-state retailers.

C. The law that criminalizes the Petitioner’s possession of wines purchased from out-of state retail vendors upon which Tennessee taxes have not been paid, when there is no mechanism to pay such taxes ?
?
The State of Tennessee has filed its motion in opposition to this petition.   The state’s brief is attached here.  It notes this is a bad case to take up for several reasons including the recent changes to TN law.   Sorry for the PDF of a copy as I had a hard time finding this one.

The “Law of the Case doctrine” was cited as the primary reason why they could not grant the state’s relief.   So the structure of the case prevents them for making this case consistent with the Costco case in the 9th Circuit.  Next up, the entire 4th panel and/or the U.S. Supreme Court.

Oral Argument Held in 4th Circuit on TFWS anti-trust case…AGAIN!

The never-ending Sherman anti-trust challenges to Maryland’s liquor regulations on price posting, price hold and bans on volume discounts had developments today.   The latest (and fourth) trip to the 4th Circuit is obstensibly related to the most recent district court opinion (memorandum opinion).  In my humble opinion, the oral argument in December 2008 seemed to suggest the 4th Circuit was grappling with how to reconcile some older, and in my view, incorrect rulings within this case, with the recent 9th Circuit Costco case and also remove themselves from the unwieldy posture of this case.  However, in February, the 4th Circuit issued an order calling for new oral arguments.   No new guidance or limitation was provided. 

What did that mean?  Well perhaps the answer was provided today when the lawyers for the two parties walked into the court to see an entirely new panel of judges on the 4th Circuit hearing this case.   The ten years of investment of the plaintiff, defendant and taxpayers in getting the other court panel up to speed on the huge record and details about the intersection of  laws related to anti-trust, alcohol and public health had to start anew with a new panel.  I do not know why the panels were switched.

And from the questions today, this new panel does not seem to favor the state’s position and seem to have taken the more narrow view of  ”why the heck should we overturn the district judge?” as opposed to a more general debate about whether the laws were hybrid or unilateral restraints.  As a result, the state was on defense and TFWS on offense for this hearing.    Instead of picking up where they left on in December, the state was in a position of showing that Judge Quarles was clearly erroneous in his ruling on tax differentials between Maryland and Delaware while at the same time responding to arguments from the panel and TFWS attorney asking why the state didn’t just raise taxes if it is interested in higher prices to raise the price of alcohol.  It was repeatedly noted by the lawyer for TFWS that Maryland has the lowest tax on liquor and if it was really interested in temperance and orderly markets it would raise the liquor tax.   He repeatedly pointed out that the state and wholesalers fought any tax increase.   Judge Duncan also asked a question on this theme.  Essentially, TFWS is saying if you argue against a tax hike you can not  seriously justify a volume discount ban (and by implication credit prohibition, minimum mark up laws, etc.) or other state laws that may impact temperance and orderly markets.

Obviously, this hearing today could pose a serious setback in the state’s ability to regulate alcohol.  It looks like  Judge Pechman’s thinking that raising taxes is the  only way a state can influence alcohol policy and pricing may have another life if my observations today are correct.   An adverse ruling in the 4th Circuit may trigger a full en banc request to get the 4th Circuit to clean out this mess, lay all issues out before it, and end the procedural games that have hampered the full appeal of this case.   However, this is rank speculation on my part.

Most importantly, the 4th Circuit and the 9th Circuit could be split on this issue and we may be looking at a U.S. Supreme Court showdown as early as late 2009.

A transcript of the most recent 4th Circuit oral argument will be posted once obtained.

NBWA along with WSWA submitted an amicus brief  in support of the state of Maryland.   The state’s brief was submitted before the 9th Circuit ruled for the state of Washington and against Costco on most counts.

Circuit Judge Calabresi noted in his concurrence the challenge of lower courts and state legislatures trying to harmonize and implement the Supreme Court jurisprudence on the 21st Amendment.  (“It can leave state legislatures and lower federal courts with no firm understanding of what the law actually is.”) Moreover, he cautioned against judges putting their own spin on history saying “But judges are not historians with fancy robes and life tenure.”

 I would have added a section to this concurrence noting that the beauty of the 21st Amendment is if there is a perceived alcohol related policy problem, people can fix it in their state legislature or at the ballot box. For example, you want the county to be ”dry” or “wet” or you want to limit licenses; vote on it.  Don’t have the federal court set alcohol policy.

What does this mean for alcohol regulation? As always, it depends.  One of the 5 votes is now officially retired (Souter) so this may be a temporary win for state rights to regulate.  Moreover, this case had a most interesting breakdown of Justice Scalia voting with the more liberal wing of the court.  Would that breakdown replicate in an alcohol related matter?   How would a new Justice vote?

Nevertheless it is a important break for the states, specifically state attorneys general, seeking to enforce state laws against national corporate players.  Hiding behind federal regulations to preempt state laws so companies can avoid dealing with state laws they deem ”bothersome” may not be so easy next time.