We need a lawyer for that one. Those laws are ancient and the world has changed since they were first drafted. Early on the dealership model was a net benefit to manufacturers and now that it's institutionalized car companies don't have a huge incentive to challenge it.
Regardless, its the law right now and any challenge would take years to resolve.
Geez, no matter how much I try to avoid my day job on this site, it keeps coming up! :wink:
At least this time, it's not Tesla directly involved in suing someone or getting sued in a business dispute. :biggrin:
OK, the bottom line is that I don't see any constitutional grounds upon which to challenge these laws. These laws don't prevent consumers from buying cars (although it theoretically makes it more difficult), and I have no idea what constitutional provision would protect a manufacturer in this context. Remember, these are state laws, so for them to be overturned nationally, it would have to violate the US constitution or conflict with a federal law/statute. I just don't see anything that would help with the former (no good constitutional argument), and there's nothing currently on the books (except antitrust as discussed below) that would serve this purpose.
The paper rightly (IMHO) focuses on antitrust law as the possible basis for a challenge to these state laws. However, the few times these laws have been challenged, courts have upheld them. Even if you could guarantee the Supreme Court would hear this case (and they accept something like 1% of the cases filed with them each year), there's no guarantee they would rule in the manufacturer's favor on this issue. For Tesla's purposes, it would take 3-5 years to get to the Supreme Court, which makes it probably worthless given the (relative )speed with which they're trying to go to mass market.
The better solution, then, is a federal law that simply invalidates these state laws. It's something that can be thrown into any law passed by Congress, and just needs to say that anyone manufacturing a mode of transportation has the right to sell directly to consumers. This federal law, which would be constitutional under the Commerce Clause (now a popular subject because of the recent ruling on Obamacare), would supercede any state law that otherwise prohibited such sales, and would essentially make those laws moot. At that point, any manufacturer threatened by a state or locality with being shut down under a state law could run to a federal court and get an immediate injunction preventing such action.
As the author of the paper implies, the federal government now has a very vested interest in the success of auto manufacturers (he mentions GM and Chrysler because of TARP, but you could throw Tesla, Fisker and Nissan in as well under the loan program), and obviously getting rid of these laws will help manufacturers, so there could possibly be some incentive on Congress' part to change these laws.
The biggest obstacle, of course, is that auto franchisees are among the most powerful constituencies we've seen in awhile. When GM and Chrysler tried to shut a bunch of them down during their bankruptcies, they mobilized like crazy with Congress and were able to change a lot of otherwise rational business decisions regarding closure of certain dealerships. So it's extremely unlikely something like this will get through Congress any time in the near future.