You win, Keith. 5-4.

We’ll see. I just can’t imagine that a majority of justices would agree to make VRPM doctrine any more complicated than it already is. Unless there’s a full-on overruling of Dr. Miles, we’ll still have to contend with the complexities created by Colgate (OK if unilateral), Parke-Davis (no cajoling to induce compliance with resale prices), Sylvania (ROR if non-price), Monsanto (must make specific showings to establish agreement to set resale prices), and Business Electronics (must make specific showings to establish that vertical agreement is a price agreement). This body of law is a huge mess with lots of complexities that are required for dealing with a much-needed loophole (Colgate). I really believe the Court will junk the whole thing.

Pretty fun to speculate, eh?

I think it will come down to how Justice Breyer votes. I predict that he will be in the majority.

It is highly probably (indeed, virtually certain) that Justice Stevens will vote to keep in place the per se rule against vertical RPM.

I think that this indicates that it may be like how Stevens instituted the “Quick Look” in the opinion he wrote. Stevens, despite his background, somehow managed to avoid the whole law&econ revolution, perhaps because he was purchasing more bowties. Yet I think he’s writing it to salvage what he can — just like (NCAA, IIRC?) where he created quick look out of whole cloth.

So yeah, I think that it’s going to still be overruled, but Stevens will probably do something similar, and maybe say that this only qualifies for quick look, rather than full-blown rule of reason. The real question is whether he could maintain a majority for that opinion…