I've been following direct shipment litigation now for well over a decade. At first I read briefs and decisions issued in the various cases across the country because clients of mine were helping push the issue forward. Reading not only legal briefs but also decisions and analyses of court decisions means learning another language if you are not a lawyer. And I am decided not a lawyer.
Still, it's actually been something of a great intellectual pleasure for me to slowly learn the language that surrounds the constitutional issues associated with direct shipping.
Later, after beginning working with the Specialty Wine Retailers Association, it became essential that I grasp the intricacies of Direct Shipping law since SWRA was involved in litigation. What I discovered is that it is a very small group of people around the country who actually care about this litigation and even fewer who follow the litigation closely and understanding the legal theories that underpin the legal landscape of direct shipment law.
One of those people is Corbin Houchins.
Corbin, a lawyer, has released an analysis of the recently decided 2nd Circuit Court of Appeals decision in Arnold v. Boyle in which a panel of three judges determined that the State of New York may discriminate against out-of-state wine retailers by prohibiting them from shipping to consumers in the state while allowing NY retailers to do so. Their reasoning boiled down to two important notions. ). The Granholm Supreme Court decision only determined that "products", not commerce, was protected by the commerce clause of the Constitution and could not be discriminated against, and 2) that out-of-state retailers really aren't discriminated against because they, like NY retailers, need only get a license in New York to ship wine to New Yorkers.
On the face of it, these two notions, both wholly inadequate interpretations of the law in my opinion, seem pretty straight forward. But as Corbin makes clear in a deliciously argued analysis of the case, it isn't all so simple.
You can find Corbin's analysis of Arnold v. Boyle at the ShipCompliant blog where he publishes periodic notes on direct shipment of wine. You can see SWRA's take on the decision here.
This is where this post is going to lose a few readers if it hasn't already: If you have any interest in the theory and practicalities and minutiae of direct shipping law, then you MUST read Corbin's notes on this case.
Now that four readers have stayed with me, let me say this: You don't often see a set of judges take a radical departure from Supreme Court directives. You saw it in this case. The 2nd Circuit rendered what can only be described as a radically conservative reading of the Supreme Court's decision and directives in Granholm v. Heald. Some have argued that this happened in part because one of the judges on the panel was also the judge who's decision was overturned in one of the cases that led up to the Granholm v. Heald Supreme Court case. I'm not so sure of that.
So, readers 1, 2, 3, and 4.....Go take a look at Corbin's analysis of this case. It's very good reading.
