Legal Management the Legal Issues Book Review

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those of the federal government. But the assessment delivered in the case of Granholm v. Heald actually seems to imply that this focus is misdirected. In a case where small wineries with limited means to obtain local distribution have attempted to broader their reach through catalogue and web-based sales, several states have invoked the language surrounding the repealing of prohibition (through the 21st Amendment) in order to oppose these efforts. The opinion outlined by Supreme Court Justice Kennedy in a 5-4 majority decision would strike down such restrictions.

Kennedy's opinion would find that "these schemes allow in-state, but not out-of-state, wineries to make direct sales to consumers. This differential treatment explicitly discriminates against interstate commerce by limiting the emerging and significant direct-sale business." (Kennedy, 1) in other words, the opinion of the Supreme Court was that laws obstructing these efforts at interstate commerce were actually inconsistent with the Constitution's intentions. The value of interstate commerce and the spirit in which this is pursued appear both as central themes in the opinion, reinforcing the view that this seems to favor larger liquor, wine and spirits operations with the capacity to work with wholesale distributors in any context. The creation of legal obstacles to practices specific to small-business enterprises would be appropriately characterized here as a pointed attack on their opportunities as contrast those of powerful national brands. This is clearly a philosophical point of contrast from the implications of the Constitution where economic opportunity is concerned.

Chapter 5-Case #2: By vesting trust in the representation of its services and products in any number of independently licensed business partners, IBM has taken on some degree of liability for the ability and honesty reflected by said business partners in their effort to market IBM-labeled commodities.

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However, the burden of proving that IBM has chosen to represent itself through any specific business partner is placed decidedly on the claimant.

In this case, the claimant is NTG Telecommunications, which has argued that based on an advertisement received by IBM regarding its Small Business Solution, it had been convinced to seek a solution for its own it needs which was ultimately incompatible. However, the key shortcoming in the claimant's case against IBM is the absence of any evidence demonstrating that IBM had placed NTG in contact with the agency which ultimately sold it the faulty system. So denote the court proceedings, which find that "neither Cubbage nor Sun Data Services were named in the letter. Further, IBM played no role in referring NTG to Cubbage; Jud Berkowitz, the President of NTG, testified that he knew Cubbage from prior transactions and that he had outside information that he was an IBM business partner. Finally, there was testimony that Cubbage also sold competing products, such as those manufactured by Hewlett Packard. Based on this evidence, even considered most favorably to NTG, the Court finds that NTG could not have reasonably believed that Cubbage was IBM's agent, capable of binding it by its actions." (Kelly, 1) This denotes that responsibility for the faulty system does not rest with IBM and that further, no fraud has been committed on IBM's part or, in the lack of evidence connecting it to Cubbage, on the part of any of its business partners.

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