Becoming An Advocate for Wine Lovers — The Tanford Interview, Part 1

For twenty-five years Professor Alex Tanford has, along with partner Robert Epstein, been using the state and federal court systems to address blatantly discriminatory laws the negatively impact consumers’ ability to access the wines they want. Tanford was Counsel of record in the Supreme Court case of Granholm v. Heald (2005) and in 18 related lower court cases addressing a commerce clause challenge to laws prohibiting ordering wine over the Internet.

He has won some and lost some, but hasn’t stopped fighting to advance the principle that states ought not to advance discriminatory laws simply to protect special interests to the detriment of consumers. Most recently he has filed suit in Illinois, Michigan, and Missouri, challenging laws in those states that prohibit the shipment of wine from out-of-state wine stores to consumers.

Professor Tanford sat with us to discuss his years battling in court for consumers, the legal and ethical principles behind his legal challenges and his observations on the past 20 years of alcohol and the Courts. This is the first of a five-part interview.

What circumstance initially drew you to this area of the law and what about 21st Amendment/Commerce Clause litigation has sustained your interest over the years?

I’m a law professor in the wine wasteland of Indiana. In the 1990s, I was in a small wine-tasting group in Bloomington led by my friend Russ Bridenbaugh. Russ is a wine professional, whose ability to make a living as a writer, critic and consultant depends on being able to obtain advance samples from wineries, importers and other wine marketers. When the state legislature passed a new law making direct shipping of wine a felony, Russ could no longer receive the wine needed for his occupation.

Russ contacted his friend, Bob Epstein, to ask if the law could be challenged on constitutional grounds. Bob is a lawyer in Indianapolis and wine professional in his own right, who had been the wine writer for the Indianapolis Star before Russ. They decided they should talk to a constitutional law expert, so they went to see Prof. Pat Baude whom they knew because he, too, was a wine enthusiast. Professor Baude said they needed someone who was both a law professor and a practicing lawyer, so they all ended up in my office.

At the time, I was teaching a seminar in constitutional litigation. Law students normally study constitutional law by dissecting Supreme Court decisions, but I asked them to start at the other end — to think about how a lawyer would build the kind of factual and legal case that could eventually get to the Supreme Court. Who would make good clients? Whom do you sue? Where should the case be brought? How do you create a case that can meet the Court’s criteria for certiorari and appeal to at least five Justices and their clerks? Russ’s dilemma, which presented a conflict between the Commerce Clause and 21st Amendment, presented a challenging opportunity for me to practice what I teach.

My initial interest was purely academic. Some students and I debated the divergent doctrines, dissected Supreme Court decisions, read some history on the rise and fall of Prohibition, and concluded that the case could not possibly succeed. How could we make a commerce clause argument when I had no problem buying all the $10 Chianti I wanted? Then one day, someone gave me a copy of the Wine Spectator’s list of Top 100 wine values of the year. A hundred wines at under $20 — finally, something in my price range. So, I went down to my local wine shop with the list to ask what they had. They laughed at me, and told me that I couldn’t get any of it because the wholesalers thought Indiana was not a sophisticated wine market and didn’t ship it here. But I protested — it was all readily available on the Internet, from places like Sam’s Wines in Chicago or direct from the wineries. Why did the wholesalers get to decide what wines I was allowed to buy? The system seemed unfair and unconstitutional, and Bob and I decided to take up the cause.

To paraphrase Shakespeare, some are born to a cause and others have that cause thrust upon them. For better or worse, mine has become making it as easy to get good wine in Indiana as it is in California.