Elina Tetelbaum (Yale University – Law School) has posted A Sobering Look at Why Sunday Liquor Laws Violate the Sherman Act (Utah Law Review, Vol. 2011, No. 2, 2011) on SSRN. Here is the abstract:
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This Article does not address all Sunday closing laws in effect today, but limits its focus to Sunday closing laws having to do with alcohol-Sunday liquor laws. As states move to modernize blue laws, the laws most difficult to repeal have been those restricting the sale of alcohol on Sunday. Alcohol-related blue laws are particularly relevant statutes, not only because of their staying power, but because they are subject to the Twenty-First Amendment to the Constitution. The evolution of the Court's jurisprudence as to the intersection of the Commerce Clause and the Twenty-First Amendment has opened the door for a challenge to Sunday laws under the Sherman Antitrust Act.
Part II provides a brief history of Sunday closing laws in the United States. Part III discusses failed constitutional challenges to Sunday closing laws, generally under the First and Fourteenth Amendments. Part IV describes the Supreme Court's evolving jurisprudence on the intersection of the Commerce Clause and the Twenty-First Amendment and shows how, over time, federal interests have grown in increasing importance relative to state interests. Part V explains the strong anticompetitive effects of Sunday liquor laws. Part VI evaluates the countervailing state interests in Sunday liquor laws, and discusses the lack of empirical literature demonstrating the efficacy of Sunday liquor laws in promoting public health and safety objectives. Part VII concludes that these laws unreasonably restrain trade and might not withstand a challenge under the Sherman Antitrust Act.