By Asheesh Agarwall and Jerry Ellig

About the Article

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that forbids states from discriminating against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the Tenth Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest and states must present real evidence that the discrimination is necessary to accomplish their policy objectives. The Court conducted a fact-intensive analysis and concluded that the states had failed to make a persuasive case in favor of discrimination against out-of-state wine sellers.

About the Authors

Asheesh Agarwal is an attorney with the Department of Justice. J.D., University of Chicago, 1997; B.A., Political Science, Northwestern University, 1994. The views expressed here represent his own, not those of the Department.

Jerry Ellig is a senior research fellow with the Mercatus Center at George Mason University and an adjunct professor at the George Mason University School of Law. Ph.D., Economics, George Mason University, 1988; M.A., Economics, George Mason University, 1986; A.B., Economics, Xavier University, 1984.

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