Nicholas Kristof vs. Anheuser-Busch

by Walter Olson on May 18, 2012

I’ve got a piece out at Reason today in which I de-foam the Times columnist’s highly aerated assertions about beer sales near the Pine Ridge, S.D. Oglala Sioux reservation. And a followup at Cato: Kristof has written about the failures of the Drug War, so why does he not apply those lessons here? See also: NYT “Room for Debate” discussion. A different view: Eric Turkewitz.

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1 Turk 05.18.12 at 1:40 pm

In defense of Kristoff, he doesn’t rely on the lawsuit (“I don’t know how the lawsuit will go,”…) and sticks to the moral issues.

The issue of selling something just over the border under different laws/prices isn’t exactly unique (alcohol, firearms, tobacco, gambling, gas), but the ramifications in lives lost in this case does make it different.

He can’t do anything legally, and perhaps no one can, but raising the issue to the public and hoping to shame the company into better practices is fair game.

It actually reminds me of some of the e-shaming things I’ve seen (and written) over the years when it comes to attorney marketing. (The xyz practice might be legal, but it smells bad…)

2 Walter Olson 05.18.12 at 1:47 pm

Given the Nebraska law on beer distribution, what do you believe the company can do, short of pulling out of the state entirely?

3 Turk 05.18.12 at 2:02 pm

Since I’m unfamiliar with Nebraska’s beer law, I won’t opine.

(Also, though you printed from their brief about a prohibition on brewers “controlling” a distributor, I don’t know what that means in practice. I assume it means you can’t give a directive, but does it allow for opinions? Judge Turk would need to see well-briefed memos of law before opining.)

But. I think it’s pretty clear that a Kristoff advocacy campaign would be heard, and that distributors would hear it. Whether they do anything remains to be seen, and probably would be reflective of the response to the campaign.

4 Turk 05.18.12 at 2:42 pm

One more thought:

If a manufacturer has reason to believe that a distributor is engaging in illegal conduct (ex: collaborating in smuggling), then the manufacturer can sever that relationship. Turning a blind eye may be seen as complicity.

And if the mfgr. continues to do biz with the dist. then I can see the potential for a court holding that the mfgr has a duty to the ultimate customer.

This is all very fact-dependent, and would apply to secondary markets of all kinds, not just booze (such as prescription drugs and guns).

A case that discusses this liability theory in the gun context is Hamilton v. Baretta (NY Court of Appeals).

5 Bill Alexander 05.18.12 at 2:46 pm

I would think the manufacturer would need more than belief of illegal conduct or else they would most likely be in breach of contract.

6 Walter Olson 05.18.12 at 3:12 pm

Remember that the Nebraska system (and that of most states) is three-tier, not just two-tier. That means that if the local stores are unlawfully abetting smuggling (are they even alleged to be doing that? Selling to South Dakota residents isn’t smuggling) the brewers have no relationship with them to cut off. If Anheuser-Busch were to announce that it is cutting off a statewide wholesaler because it has reason to believe that that wholesaler has behaved illegally, it would surely have to worry about setting itself up for a damaging lawsuit defeat at the hands of that party.

7 Jim Collins 05.18.12 at 4:16 pm

Come on. It’s the New York Times, consider the source. What I want to know is what gives this lawyer the right to file this lawsuit and why hasn’t this lawsuit been laughed out of existance. Nobody forces these people to leave their reservation, cross a State line and purchase beer. What ever happened to “personal responsibility”?

8 Turk 05.18.12 at 4:43 pm

What ever happened to “personal responsibility”?

That’s an excellent question to put to tort reformers who ask for immunities and protections.

OK, I digressed from the topic’s post, but that was worth it, no?

9 David Schwartz 05.19.12 at 12:07 am

Turk: “If a manufacturer has reason to believe that a distributor is engaging in illegal conduct (ex: collaborating in smuggling), then the manufacturer can sever that relationship. Turning a blind eye may be seen as complicity.”

Really? So could a regulated telephone company cut off service to a customer who was using their phone to violate Saudi Arabian laws against criticizing the king? Anheuser-Busch specifically claims that regulations say they cannot.

It’s not burdensome enough to follow the laws we are actually subject to, now we even have to comply with the absurd laws of jurisdictions we don’t do business in too? I would think Anheuser-Busch’s position would be that free adults have the right to consume beer if they wish to.

10 DR 05.19.12 at 12:34 am

Let me tell you how the law suit will most likely go…. not in favor of the Lakota, sadly. Regardless of what topics Mr. Kristof has covered in the past, the fact it made the NY Times, outside Indian country got an important issue out there. But of course, I expect the usual remarks, snide comments, lack of facts by public opinion without spending time coming and going from this hell hole. I’m not Lakota or American Indian, grew up way outside of Ndn country. Personal responsibility is not one sided here. Why hasn’t this lawsuit been laughed out of existence? For decades I’ve watched time stand still in Whiteclay. Surely when reading an article, one of thousands upon thousands that never made it outside Ndn country, I for one are am hoping others will not dehumanize the Lakota with Whiteclay and VAWA, American Indian women are devalued along with other minorities. What’s happened to this country? Where’s the compassion for humanity? Never in my entire life have I continuously witnessed deep hatred and racism for a population of people, not just SD reservations, especially along border towns, but throughout isolated, remote, impoverished reservations. Here’s a few thoughts from someone who frequents PR and a few of the 8 other reservations in SD, where less than a 2 mile walk is an unincorporated town of about 12 people. Btw, there’s bootlegging, drug dealers, prostitution, and so on already in existence, always has been, the future’s not looking so bright for those who reside on PR. Before anyone jumps to conclusions about bootlegging and the rest, don’t be so quick to judge, there’s a whole lot of Non Indian criminal activity that I believe has become an enterprise for many Nebraskans. Anheuser donates to Nebraska politicians every year. Whiteclay being an unincorporated town, the next town about 40 miles away, generates 4 to 5 hundred thousand a year from a fake town from sales alone. In the real world we know pay offs, kick backs are right up there with hush money. For God’s sake, law enforcement sits in their cars, especially in winter, they do nothing. Why do you think that is? There’s more than one answer… Sad. Politics, alcohol, pimping, prostitution… These are human beings, and I for one am thrilled some light is shed on this very critical issue.

11 Jay Markowitz 05.19.12 at 3:46 pm

From the ‘Reason’ comments, thought this one was worth repeating:
“It’s all Busch’s fault.”

12 david7134 05.19.12 at 5:30 pm

DR,
Why is it that we feel that government, rules, laws and regulations are going to help with the alcohol problem among American Indians? Our government has been putting itself in our lives for over 120 years without any measurable benefit. Prohibition of drugs or alcohol is a total and complete failure. The reason is that we are treating the wrong thing. These issues involve psychological problems and are not the classic “addiction” that is claimed. The treatment should be tailored to the emotional and environmental problems that are exhibited by those that can not handle alcohol or drugs rather than the stupid regulatory measures that have been taken. These laws have significantly reduced our freedoms, and to what effect?

13 SheetWise 05.19.12 at 9:00 pm

“Is there a New York Times columnist as insufferably moralistic, or as neglectful of facts that contradict his argument, as Nicholas Kristof? “

Paul Krugman by a nose.

14 DR 05.20.12 at 12:19 am

David7134,
I certainly don’t think the gov rules, laws, regulations do crap for American Indians. There’s so many issues that need to be addressed in Ndn country. The biggest underlying issue, and this is my opinion, is extreme poverty. The BIA needs to be abolished, they are a criminal enterprise as far as I”m concerned. Alcohol and substance abuse, youth centers, mental health, historical trauma, none of that is a concern to non ndn’s. Poverty is man made, we all know that. I believe the gov has ndn’s right where they want them. Instead of spending 40 million on a new prison, so much could have been done with that. Corruption is as much an epidemic as diabetes and alcoholism. The boarding school era is a lost generation, painful, absolutely needs healing on many levels. But, people can read an article who have never been to an impoverished reservation off the grid, cannot comprehend the realities ndn country faces unless they see, smell, walk it, drive it, stick around, but out of sight out of mind.
Not sure why I gave you that idea?

15 david7134 05.20.12 at 1:40 pm

DR,
I don’t mean to be offensive, but when people want to “do something” it usually means more government for someone. I have worked in similar indigent circumstances to what you are describing. I can assure you that much of what is occurring is the direct result of government influence, especially with Indians. But a large amount of poverty is the direct result of individuals that just don’t “get it”. They are either lazy or obtain power through an economy that is completely different from anything that we know in our world. In addition, they lack the ability to see the future. They can not understand anything beyond a time period that is measured in days (at best). I have seen people who are so lazy, ignorant or whatever description that you want to use who will not even take the time to sign up for the free income and health care that our government offers. We literally had the have social workers go to them to do the paper work and they still felt put upon.

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