Final briefs filed in 5th Circuit Texas ABC Challenge to Wal-Mart’s Commerce Clause win against prohibition of publicly traded corporations obtaining certain liquor licenses. (Bonus, we’ve got all the briefs for you.)

Back in November we wrote about the Texas Alcoholic Beverage Comission’s appeal challenging an important Texas Federal District Court win for Wal-Mart in another Commerce Clause case invalidating a state restriction that impacted out-of-state retailers differently than in-state retailers.

In that piece we covered the District Court decision in detail and pointed out that the win was another great example of how going to trial and putting on expert testimony and evidence showing that a liquor law does not actually produce the effect (temperance, orderly marketplace, reducing under age driking, etc.) that a state claims it does is a sure-fire way to overturn archaic and unfounded liquor laws adopted by legislatures for an improper purpose or based on assumptions (typically non-scientific reasoning) about how people act or what the effect of a law will be.

A good example of this would be the 8th Circuit case presently underway in Missouri where testimony from experts demonstrated that certain advertising bans on pricing bore no relation to reducing consumption.

The Wal-Mart challenge is more intriguing because it was the impact of the challenged legislation that the District Court found violated the Commerce Clause and not the language. The statute can be facially neutral, but have an impact that drastically hinders operations of out-of-state interests and not those of in-state interests thereby violating the Commerce Clause.

For those familiar with the briefs in the Supreme Court and 6th Circuit Byrd/Tennessee matters, many of the arguments will seem familiar. There are a few standouts, one decent argument made by the Amici in the Pacific Legal Foundation’s brief discusses how event under Rational Basis Review, economic protectionism is not a legitimate government interest.

In the prior article (link above) we provided the briefs filed up to that date. Since that piece was published the briefing has finished. The response and reply briefs for the appeal and cross-appeal as well as two amicus briefs in support of Wal-Mart’s position.

Here are the final briefs:

Texas Wal-Mart Liquor License 5th Circuit Brief Wal-Mart’s Reply Brief

Texas Wal-Mart Liquor License 5th Circuit Brief Texas ABC’s Response and Reply Brief

Texas Wal-Mart Liquor License 5th Circuit Brief Institute for Justice Amicus in Support of Wal-Mart

Texas Wal-Mart Liquor License 5th Circuit Brief Pacific Legal Foundation Amicus in Support of Wal-Mart

Texas Wal-Mart Liquor License 5th Circuit Brief Texas Package Stores Association Response and Reply Brief

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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