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Abstract:
Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue is now before the Supreme Court of the United States. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.

The thesis of this Article is that States which presently prohibit direct shipment of wine to consumers from out-of-state sources but permit such direct shipment from in-state sources should now give serious consideration to repealing their bans on direct shipment of wine from out-of-state sources. The resolution of this issue by the Supreme Court cannot be predicted with certainty, but the Court's current Commerce Clause and Twenty-first Amendment jurisprudence weighs heavily in favor of the argument that differential treatment of direct shipments of wine from out-of-state and in-state sources violates the Commerce Clause and is not closely related to powers reserved to the States by the Twenty-first Amendment. Rather than facing the likely prospect of court-imposed remedies, State legislatures should craft reforms best suited to individual States' needs, such as tying repeal of the ban on direct shipment of wine from out-of-state sources to collection of state taxes on the transaction.

States that have discriminatory direct shipping laws should repeal the ban on direct shipment of wine from out-of-state sources and enact legislation to regulate such direct shipment. Such a solution will serve several legitimate State interests. First, it will continue to permit in-state direct shipment of wine so as to encourage a State's domestic wine industry. Second, it would prevent minors from using direct shipment to make illegal purchases. Such legislation could require out-of-state vendors to obtain a license for a modest fee to ship limited amounts of wine directly to consumers, to collect and remit applicable State taxes, and to submit reports of such shipments. It could also provide that a carrier that delivers such a shipment must obtain the signature of an adult when the product is delivered. The system should be designed in such a way that it is not so cumbersome that out-of-state vendors are discouraged from applying for a license. Third, it would create a new market in which States could gain additional revenue. Finally, this approach will allow these States to craft legislative solutions that are responsive to their own local interests without having reform imposed upon them by a court. Thus, States that have discriminatory direct shipment laws should give serious consideration to enacting such legislation.

wine, shipment, prohibition, direct

Abstract:
On June 22, 2004, President Bush signed into law the Antitrust Criminal Penalty Enhancement and Reform Act of 2004. Although no public fanfare accompanied passage of this Act, it contains important provisions designed to restore a meaningful role for the courts in the settlement of antitrust lawsuits brought by the U.S. government.

Over three decades ago, in response to concern that antitrust settlements might be tainted by corruption, yet routinely rubber-stamped by the courts, Congress passed the Tunney Act. This Act provided that before entering a consent decree proposed by the government in an antitrust action, "the court shall determine that the entry of such judgment is in the public interest." The plain language of the Tunney Act appeared to require judges to make a de novo determination of whether a proposed antitrust consent decree was in the public interest, but the courts settled on a narrower standard that gave some deference to the executive branch's view of the public interest.

This decades-long consensus unraveled in the 1990s in a string of decisions by the United States Court of Appeals for the District of Columbia. These decisions arose from antitrust actions that the United States brought against the computer software colossus, Microsoft Corporation. The D.C. Circuit ruled that, in making the substantive determination whether a proposed consent decree was in the public interest, judicial review was limited to whether the decree made a "mockery of judicial power." Under this standard, the court's role appeared to be merely ministerial in nature: a proposed decree must be entered with little regard for whether the judge thought it was in the public interest, unless it was so inadequate as to suggest actual wrongdoing by the government. A retreat to the days of judicial rubber-stamping was under way.

A bipartisan effort was launched in the U.S. Senate to overturn the D.C. Circuit's mockery standard and restore meaningful judicial oversight. The product of that effort is the Act of 2004. It explicitly rejects the mockery standard and then amends the Tunney Act to make it mandatory - not merely discretionary - for courts to consider various factors in making the public interest determination.

The thesis of this Article is that the amendments should be construed to restore the standard to the one to which Congress had acquiesced to in the decades before the "mockery" standard burst upon the scene; that the proper role of the court is to determine whether a proposed consent decree is "within the reaches of the public interest"; and while a court should afford some deference to the executive branch's decision to settle on the proposed terms, it should also exercise close scrutiny of whether the proposed consent decree is reasonably calculated to protect competition.

antitrust, consent decrees, judicial review

Abstract:
On June 22, 2004, President Bush signed into law the "Antitrust Criminal Penalty Enhancement and Reform Act of 2004". Although no public fanfare accompanied passage of this Act, it contains important provisions designed to restore a meaningful role for the courts in the settlement of antitrust lawsuits brought by the U.S. Government.

Over three decades ago, in response to concern that such settlements might be tainted by corruption, yet were routinely rubber-stamped by the courts, Congress passed the Tunney Act. This Act provides that, before entering a consent decree proposed by the government in an antitrust action, "the court shall determine that the entry of such judgment is in the public interest". It also provided that, in making the "public interest" determination, the court had the discretion to consider such factors as the "competitive impact" of the proposed judgment; the court, however, was not required to consider these factors.

The plain language of the Tunney Act appeared to require that judges must make a de novo determination of whether a proposed antitrust consent decree is in the public interest, without any deference to the view of the executive branch that the public interest would best be served by a proposed settlement. Courts, however, declined to adopt a de novo standard of review. Instead, they settled on a narrower standard: a proposed consent decree should be entered if it is "within the reaches of the public interest", giving some deference to the executive branch's view that the proposed settlement is in the public interest. Courts adopted this deferential standard in order to preserve consent decrees as an effective enforcement mechanism. De novo judicial review, in their view, would convert the settlement process virtually into a trial on the merits and thereby strip that process of much of its value.

Though deferential, this "within the reaches of the public interest" standard preserved an independent and meaningful role for the courts. Judges emphasized that they were not acting as rubber stamps for the executive branch, approving settlements no matter how tainted or inadequate. Proposed settlements were scrutinized to determine whether they were reasonably calculated to protect competition. The great majority of proposed consent decrees were entered after such scrutiny. In a number of cases, however, courts refused to approve proposed decrees unless appropriate modifications were made, so that courts performed an important mediation role. Moreover, it is likely that the very prospect of searching judicial scrutiny was an important deterrent to efforts to use political heft to swing sweetheart deals.

This decades-long consensus unraveled in the 1990's in a string of decisions by the United States Court of Appeals for the District of Columbia Circuit (hereinafter "D.C. Circuit"). These decisions arose from antitrust actions brought by the United States against the computer software colossus, Microsoft. The D.C. Circuit ruled that, in making the substantive determination whether a proposed consent decree is in the public interest, judicial review is limited to whether the decree makes a "mockery of judicial power." Under this standard, the court's role appeared to be merely ministerial in nature: a proposed decree must be entered with little regard for whether the judge thought it was in the public interest, unless it was so inadequate as to suggest actual wrongdoing by the government. A retreat to the days of judicial rubber stamping was under way.

Congress had acquiesced for decades in the deferential "within the reaches of the public interest" standard of review, but the toothless "mockery" standard represented a major threat to vigorous enforcement of federal antitrust law. The overwhelming majority of government antitrust actions are settled by consent decrees. Such settlements thus are an important - perhaps the single most important - component of antitrust law enforcement. Judicial oversight of this process is a key safeguard against corrupt or inadequate deals struck by the executive branch. Such oversight both deters bad deals and provides a means to reject bad deals when they are made. The "mockery" standard posed a serious threat to effective judicial oversight of the settlement process, and therefore posed a threat to vigorous enforcement of federal antitrust law.

A bipartisan effort was launched in the U.S. Senate to overturn the D.C. Circuit's "mockery" standard and restore meaningful judicial oversight. The end product of that effort is the Act of 2004. Its provisions are two fold. First, there is an express congressional finding that the "mockery" standard is not a correct construction of Congress' intent that courts must determine whether proposed settlements are in the public interest, and there is an express statement that the purpose of the amendments to the Tunney Act is to restore meaningful judicial review. Second, the Act of 2004 amends the Tunney Act to make it mandatory - not merely discretionary - for courts to consider various factors in making the public interest determination. The amendments do not mandate any particular standard of judicial review. The thesis of this Article is that the amendments should be construed to restore the standard to the one in which Congress had acquiesced in the decades before the "mockery" standard burst upon the scene: the proper role of the court is to determine whether a proposed consent decree is "within the reaches of the public interest"; while a court should afford some deference to the executive branch's decision to settle on its proposed terms, it should also exercise close scrutiny of whether the proposed consent decree is reasonably calculated to protect competition. A corollary of this thesis is that judges should issue written opinions that explain, in a transparent manner, how they evaluated the now-mandatory list of factors that they must consider in deciding whether settlements are in the public interest.

antitrust, judicial review, consent decrees, settlements

Abstract:
The Article concerns three related cases recently decided by the U.S. Supreme Court concerning the legal status of persons detained by the U.S. military as enemy combatants. Specifically, these detainees were designated as "enemy combatants" on the ground that they were either members of the al Qaeda terrorist organization headed by Osama bin Laden, or supporters of that organization. The cases raised three related issues: (1) whether the President has authority to detain enemy combatants; (2) whether U.S. courts have jurisdiction to consider habeas corpus petitions filed by detainees outside the U.S. (in this case, Guantanamo Bay, Cuba) who claim they are innocent; (3) what process must be afforded detainees who deny they are enemy combatants. These issues present the deeper question of how to strike the proper balance between the competing needs to defend the nation and protect civil liberties.

The Article contends, first, that any resolution of these issues must include an assessment of the nature of the threat posed by al Qaeda. The academic literature on these issues pays little attention to this topic, and one of my efforts has been to help fill the gap. It is quite clear that al Qaeda has declared, and is carrying on, a worldwide, unconventional guerilla war against the U.S. Recognition of this reality is critical to striking the proper balance, because it reveals that there is a crucial need to defend the U.S. against al Qaeda.

The Supreme Court decided, in one case, that the President does have the authority to detain enemy combatants. The Article concludes that this decision strikes the proper balance because detention of enemy combatants is a legitimate form of military force in the war with al Qaeda. The Court also decided, in another case, that U.S. courts have jurisdiction to consider challenges to detention and, in yet another case, that detainees must be afforded an opportunity to prove their innocence before a neutral decision-maker. The Article contends that these rulings present the potential that the process afforded detainees to challenge their enemy combatant status may become so intrusive that it interferes with our ability to wage war against al Qaeda. Thus, Congress should monitor this process and, if such interference does occur, it should enact legislation to deprive U.S. courts of jurisdiction in such cases.

detention, combatants