NATIONAL LAW JOURNAL





A MESSAGE FROM THE EDITOR

Day two of the confirmation hearing for President Trump's attorney general nominee William Barr featured discussion about Barr's commitment to sharing the final report of special counsel Robert Mueller III with the public. Ellis Kim has the story. And now that we're in the midst of the season for law firm partner announcements, columnist Vivia Chen discusses which firms are really reflecting diversity in their promotions. Lastly, Tony Mauro catches up with Tulane University political scientist and U.S. Supreme Court scholar Nancy Maveety in a spirited interview about her book "Glass and Gavel: The U.S. Supreme Court and Alcohol."

Check out these and other stories below.
– Lisa Helem, Editor-in-Chief, The National Law Journal

NEWS

Panel Questions If AG Candidate William Barr Would Snuff Robert Mueller's Findings

By Ellis Kim
Wednesday's discussion also turned toward an unsolicited memo Barr sent to the Justice Department and other lawyers... Read More



Ex-Thomas Clerk Will Be Lindsey Graham's Chief Counsel for Nominations

Andrew Ferguson, a former Bancroft associate in Washington and UVA law grad, succeeds Mike Davis, a former clerk for... Read More


NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Jan 16, 2019
Veteran Supreme Court advocates Shay Dvoretzky of Jones Day and Carter Phillips of Sidley Austin are up at the high court podium this morning in a case close to the hearts of wine-loving consumers and wine-selling retailers. The justices will hear arguments on whether Tennessee's residency requirements for retail liquor licenses are constitutional. Plus: Check out a snippet from our interview with the author of a fascinating book about justices' alcohol-related rulings and drinking habits. Thanks for reading Supreme Court. Comments and tips are always welcome at tmauro@alm.com and mcoyle@alm.com.
But Will the Arguments Be Dry?
The justices this morning hear one of the term's higher-profile cases—Tennessee Wine & Spirits Retailers Association v. Blair, a constitutional hybrid of the Twenty-First Amendment, commerce clause and privileges and immunities clause, all bottled in a challenge to Tennessee's residency requirements for retail liquor licenses. The state requires anyone who wants a retail liquor license to have resided in the state for at least two years.

Jones Day partner Shay Dvoretzkyrepresenting the retailers association, makes his 10th high court argument this month which is his third this term and his second in just over a week. He gets a boost from Illinois Solicitor General David Franklin, representing 35 states and the District of Columbia. Franklin argued in last term's big union fee case, Janus v. AFSCME and makes his second high court argument this morning.

Rounding out the morning's advocates is veteran Carter Phillips of Sidley Austinwith 85 appearances to his name. Phillips, representing independent retailer Total Wine Spirits Beer & More, is defending the decision of a divided U.S. Court of Appeals for the Sixth Circuit panel which struck down the two-year residency requirement because it discriminated against out-of-state residents in violation of the dormant commerce clause.

Phillips also will be arguing on behalf of Doug and Mary Ketchum, former Utah residents who ran into the residency requirement when they sought to open a store in Memphis. The Ketchums are clients of the Institute for Justice, and it's the group's second this term. The first was the excessive fines clause challenge Timbs v. Indiana.

Not surprisingly for a case with national implications for commerce and consumers, amicus briefs have flowed like a tapped oak barrel of aged cabernet. Here is a brief look at a few of the nearly two dozen.

For Tennessee Wine & Spirits Retailers Association...

>> 
National Conference of State LegislaturesRichard SimpsonWiley Rein: The text and history of the Twenty-first Amendment demonstrate that States should be free to regulate alcohol with minimal, if any, limitations imposed by the dormant Commerce Clause.

>> Illinois, 35 states, D.C.Illinois Solicitor General David Franklin: States' interests include enforcing their liquor laws, inspecting premises and records, and holding retailers accountable for state law violations.

>>
 Wine & Spirit Wholesalers of AmericaMiguel EstradaGibson, Dunn & Crutcher: Residency requirements "advance legitimate Twenty-first Amendment interests in temperance, tax collection, and orderly market conditions."

Amicus briefs also were filed by Baker Botts's Scott Keller (American Beverage Licensees); Gupta Wessler'Rachel Bloomekatz (National Alcohol Beverage Control Association), and John Neiman Jr., Birmingham's Maynard Cooper & Gale (Center for Alocohl Policy), among others.

...And for Total Wine
>> National Association of Wine RetailersKirkland & Ellis's Paul Clement: If residency requirements are upheld, "states will have free rein to close their borders to out-of-state retailers and the diverse array of wine that they offer consumers, no matter how blatantly protectionist the motives."

>> Law & Economics ScholarsBaker & Hostetler's Andrew Grossman: "Economic analysis confirms that Tennessee’s residency requirements are exactly the kind of protectionist measure that the dormant Commerce Clause forbids."

>> Cato InstituteCato's Ilya Shapiro: "The commerce and privileges and immunities clauses mutually reinforce the constitutional norm that the states are forbidden from discriminating against out-of-state residents in interstate commerce."

Other amicus filers include: Kelsi CorkranOrrick, Herrington & Sutcliffe (Retail Litigation center) and King & Spalding's Jeremy Bylund (Law Professors).
On the Justices’ Drinking Habits...

The case of Tennessee Wine and Spirits Retailers Association v. Blair, set for argument today, gives the court and the public the chance to revisit the Twenty-First Amendment and the country’s ambivalence toward alcohol. As one brief stated, alcohol is “both widely enjoyed and dangerously misused. What do you do with something like that?”

A fascinating new book charts that long history of ambiguity and matches it up—from the Marshall Court to the Roberts Court—with the Supreme Court’s jurisprudence and drinking habits.

Glass and Gavel: The U.S. Supreme Court and Alcohol is by Tulane University political scientist and Supreme Court scholar Nancy Maveety. With the Tennessee case looming, we interviewed Maveety. Here's what Maveety told us about how she thinks the Tennessee case might turn out:

"It’s a bit of a tough one to call, because its implications could be quite broad, particularly for Internet-based wine sales. At first blush, the case seems quite straightforward: it’s about a state law that creates a regime of commercial protectionism for brick and mortar liquor stores owned by in-state residents. [Briefs invoking the Privileges and Immunity Clause] could appeal to Justice Thomas and some of the other GOP appointed justices, and they could create a weird coalition to invalidate the Tennessee law by joining the four liberals and possibly the chief justice also invalidating but on dormant commerce clause/free market grounds."
>> We'll post a fuller Q&A online today exploring the wine savviness of the current court and other issues.
Supreme Court Headlines: What We're Reading
>> In a rare unanimous win for workers in an arbitration case, the U.S. Supreme Court on Tuesday, led by Justice Neil Gorsuch, ruled that a court should decide whether an exception to the federal arbitration law applies before arbitration can proceed. [NLJ]

>> "Time is short but here's how Supreme Court could have last word on 2020 census." Alison Frankel games out possible scenarios following a New York judge's ruling Tuesday. [Reuters]

>> The 5-4 decision Tuesday in Stokeling v. United States reflected an unusual alignment of the justices. Justice Clarence Thomas, writing for the majority, was joined by Justices Samuel Alito Jr.Neil GorsuchBrett Kavanaugh and, from the left side of the bench, Stephen Breyer. [NLJ]

>> Oracle America Inc. lost its appointments clause challenge to a pending U.S. Labor Department pay-discrimination case. The company's lawyers at Orrick, Herrington & Sutcliffe mounted a challenge following the court's ruling last term in Lucia v. SEC. [NLJ

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A MESSAGE FROM THE EDITOR

Oracle America Inc. must face pay discrimination claims brought by the U.S. Labor Department, despite the U.S. Supreme Court's ruling last term in Lucia v. SEC, an agency judge has ruled. Erin Mulvaney has the story. Next, the federal judiciary now estimates it has enough money to sustain paid operations through Jan. 25, pushing back the date by which it had expected to run out of funds as the government shutdown continues. Nate Robson reports. And William Barr, President Trump's attorney general nominee, returns for day two of his confirmation hearing before the U.S. Senate Judiciary Committee. Catch up on his comments on the Russia investigation in our coverage from Ellis Kim and C. Ryan Barber. Check out these stories and more below.
– Lisa Helem, Editor-in-Chief, The National Law Journal

CONTRACTS | NEWS

Oracle Loses Bid to Thwart US Labor Regulator's Discrimination Case

By Erin Mulvaney
Oracle's lawyers at Orrick had challenged the appointment of U.S. Labor Department administrative law judges. Read More

COURT ADMINISTRATION | NEWS

Judiciary Extends Financial Lifeline an Extra Week Amid Shutdown

By Nate Robson
The extra week of funding comes after judiciary was able to reduce spending through aggressive cost-cutting efforts. Read More

NEWS

William Barr Won't Commit to Recusing From Russia Investigation

By Ellis Kim | C. Ryan Barber
Barr, a Kirkland & Ellis counsel who previously led the Justice Department under the George H.W. Bush administration,... Read More

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Federal Employees Lose Early Bid to Stop Unpaid Work During Trump's Shutdown

By Erin Mulvaney
US District Judge Richard Leon in Washington said a temporary restraining order would have caused "chaos and confusion." Read More


CRIMINAL APPEALS | NEWS

Justice Breyer Joins Conservative Wing to Uphold Tougher Prison Sentence

By Marcia Coyle
The 5-4 decision Tuesday in Stokeling v. United States reflected an unusual alignment of the justices. In dissent, Justice... Read More

COPYRIGHTS | NEWS

Oracle Cites PTO as Silent Amicus in Copyright Spat With Rimini Street

By Scott Graham
Kirkland partner Paul Clement tells the Supreme Court the feds are trying to have it both ways when interpreting "full... Read More

ADMINISTRATIVE LAW | NEWS

Federal Judge Blocks Trump Administration's Census Citizenship Question

By Dan M. Clark
U.S. District Judge Jesse Furman of the Southern District of New York said in the decision that Commerce Secretary Wilbur... Read More

CIVIL APPEALS | NEWS

Gorsuch's Unanimous Arbitration Ruling Is Loss for Business

By Tony Mauro
Ginsburg, who has crossed swords with Gorsuch in the past, wrote a concurrence that expressed a broader view on interpreting... Read More



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