Judge tosses suit challenging wine ban, reads the BusinessWeek headline. Thinking that it was an Institute for Justice case, I clicked through. No indication whether that’s true, but the article was informative in other ways.
The article is short, and could disappear behind a registration-only link, so here’s the whole thing:
A federal judge has dismissed a lawsuit filed by a Little Rock man who wanted to have wine from Michigan delivered to his home, a practice now banned by Arkansas law.
Scott Beau filed the lawsuit in 2005, arguing that the state's ban on direct shipments from out-of-state wineries discriminated against interstate commerce. Wyncroft LLC, which operates a winery in Buchanan, Mich., also was a plaintiff in the suit.
When the suit was filed, Arkansas allowed in-state wineries to ship directly to customers' homes. But since then, the Legislature changed state law to ban all direct-home shipments of wine, both in-state and out-of-state.
In her order issued Thursday, U.S. District Judge Susan Webber Wright wrote that the state's law banning direct shipments of wine "neither discriminates against nor unduly burdens interstate commerce." Such a discrimination claim, Wright wrote, must show that the entities are competing in the same market.
"Here, however, plaintiffs attempt to equate two distinct commercial activities: selling small farm winery wine in over-the-counter transactions on the premises of any winery located in Arkansas and selling any wine, from any place, for direct-shipment delivery," Wright wrote. "A market in which consumers must travel to a winery to purchase wine is distinct from a market in which a consumer may order wine on the Internet for home delivery."
I used to think that successful lawyering required higher levels of conceptual and linguistic abilities than other work; I suppose that may still be accurate, but it’s becoming clear that fewer are attaining those levels. Or maybe there’s something wrong with my conceptualization skills, because I simply cannot parse the judge’s statement as quoted above in any way that makes sense.
It appears that the judge is relying overmuch on the physical nature of the two markets she’s attempting to distinguish. First, I don’t think my kids would make that kind of mistake; but in her own words, it just doesn’t make sense. Is not “small farm winery wine” a subset of “any wine”? Are not “traveling to a winery” and “ordering from a winery” two of several ways of purchasing wine? If the judge is unable to reduce such basic concepts to their fundamentals, then I marvel that she has managed to survive this long.
The most astounding thing about this ruling is her apparently absolute lack of understanding of what comprises a market. An old post is around here somewhere that speaks to these ideas, so rather than continue to rant while the weather is fine, here ’tis: Markets and Marketplaces. That straightforward definition puts the lie to her claim that Arkansas’ nannyism isn’t a burden on the wine market, of course.
And still, far too many individuals persist in thinking markets are created by the state (possibly with help from Corporatopolis), defined by the state, and capable of being controlled by the state. How long can this intellectual/economic incompetence continue?
It's not incompetence
I have become convinced that things like this are not due to incompetence. Rulings like this are a deliberate twisting of language to make the law say what ever the judge wants it to say. The interstate commerce clause of the Constitution has been twisted beyond all recognition. Similarly, Supreme Court's ruling in Kelo v. New London essentially ended private property rights in the USSA. Newspeak rules the day.