Speaking of amicus briefs, shortly before Christmas Josh Wright and I filed a brief in support of a petition for certiorari in an appeal from the 5th Circuit’s decision in Wine Country Gift Baskets.com v. Steen. Because it is a brief in support of a cert petition it is not generally available on line but it has been uploaded here. The brief was filed on behalf of “Economists, Law and Economics Scholars, and Former FTC Officials.” The full list of signees is attached as an Appendix to the brief, but among the signatories are two Nobel Laureates in Economics (Vernon Smith and Daniel McFadden) and many household names in economics and law and economics, including Donald Boudreaux, Henry Butler, Tyler Cowen, Harold Demsetz, Richard Epstein, Mark Grady, and a bunch of other people whose names just happen to come later in the alphabet and I fear slighting by my inability to list all of the signatories.
In the brief we argue that the 5th Circuit blew it in its opinion by limiting Granholm v. Heald to protect only direct shipping by producers of wine and by not extending the protection of the dormant Commerce Clause against discriminatory treatment to formally protect all forms of retailing. I say “formally” because, of course, the activity that was at question in Granholm was the ability to sell wine to consumers, which is what retailing is. We also document the economic benefits to consumers from enforcing the dormant Commerce Clause to prevent discriminatory regulation of wine shipment from retailers generally as opposed to limiting it to only producer-retailers.