A good lawyer is like a rare and expensive bottle of wine

On January 14, Chief Judge Lynch (with Judges Stahl and Judge DiClerico, D.Ct. NH, visiting) issued an excellent commerce clause opinion, striking down a Massachusetts law imposing disparate restrictions on "large" winery direct shipping sales:  Family Winemakers CA. v. Jenkins, 09-1169: http://www.ca1.uscourts.gov/

The commerce clause is another one of those issues I could write a book about, and this decision confirms what I've always thought about such cases and why I like this area of the law:  good lawyering matters.

I'm not going to get into the details.  Suffice it to say that C.J. Lynch provides a stellar framework for making a commerce clause claim – save this decision and keep it on your refrigerator if you've got such a claim or are contemplating one, because it goes through the A,B,Cs.  

The point I want to focus on here is a comparison of this ruling to another First Circuit decision in which the Court (Judge Selya, with Judge Boudin and visiting Judge Schwarzer) upheld a Maine law restricting direct shipping sales;  Vineyard v. Baldacci, 505 F.3d 28 (1st Cir. 2007). 

The Massachusetts law made large wineries, defined as producing over 30,000 gallons of wine annually, choose whether to use retailers or direct shipping, while small wineries could use any option – retail, wholesalers, direct shipping.  It just so happens that there are no "large" wineries in Massachusetts so defined.  Thus, the law hurt the large wineries and helped the local Mass industry.  Among those representing the challengers to the law was Kenneth W. Starr.  The folks on the defense side were basically AGs. 

The Maine law only allows face to face direct shipping sales.  Hence, unlike the Mass. case, the small out of state folks are disadvantaged, which could be viewed as helping the big guys.  So our AG (represented by Chris Taub and Paul Stern, two very able and experienced folks) had a big line up of amici supporting them, including lawyers like, e.g. Carter Phillips. 

Judge Lynch distinguished the decision in Baldacci from that in Family Winemakers by saying (n. 13) that the challenge in Baldacci "failed because plaintiffs did not introduce any evidence that the law benefitted Maine vineyards or harmed out-of-state wineries."

In other words, the record in a commerce clause claim is key – this is one of those rare constitutional claims where there's some opportunity to provide some facts, and you'd better do your best to do so.  

 Although in theory (and rare cases) a challenger to a state law can prevail by showing only discriminatory effect or an "excessive" burden on interstate commerce, a key to winning is very often making the court understand what's really going on.  Even when it's obvious, however, there's some precedent that still upholds the law.  Maybe you can say it's the luck of the draw of judges sometimes, but to me the lesson is you've got to get as many facts in there as possible.  Supply the fingerprints of the legislature passing protectionist legislation.

CJ Lynch, I think we would all agree, does not lack in the synapse-jumping department, so she can see the handwriting on the wall if everyone could just dump any old evidence into the record, and the court is very circumspect in this decision about the type of evidence it will look at, leaving for another day fighting about material other than basic undisputable facts and legislative history.  Still, acknowledging that the view of one legislator isn't decisive, she notes that it is evidence.  There's also caselaw from elsewhere that allows a broader spectrum of evidence in when the law was passed by referendum (a.g. anti-waste laws or ordinances).  

In sum, while there are differences between these two laws, and obviously there were different panels, those are two factors that are predicates for the attorney – you can't change them.  What you can do, however, is make the best argument, citing the best precedent (and this decision is pretty helpful) making the best record you can.  Good lawyering might not always, and may not in this instance, have made a difference.  But it can.  

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