I was on Spring Break last week and was too tied up to do much blogging on Leegin, which I’ve been following pretty closely. Fortunately, Josh and Keith were on the ball with some great insights. I did eventually manage to do a little tea-leaf reading for the eSapience Center for Competition Policy (eCCP).
eCCP has now posted my Observations on the Leegin Argument. To obtain the full document, you’ll need to register with eCCP — which, if you’re at all interested in antitrust, is something you should do in any event.
My short article summarizes the discussion on the seven primary issues addressed at oral argument: potential difficulties with a rule of reason approach, the view of economists, the relevance of the 1975 Consumer Goods Pricing Act, potential effects on discount retailers, the role of stare decisis, the relevance of price increases following the repeal of fair trade laws, and the relevance of the Colgate doctrine.
In the end, I make a specific prediction: In a 7-2 or 6-3 decision authored by Justice Scalia (with a Ginsburg concurrence), the Court will overrule Dr. Miles.
(Please note that my prior promise to eat my hat if the Court does not overrule Dr. Miles does not apply to this more specific prediction about voting, opinion authorship, etc.)
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This is a very useful summary of the oral argument, Thom. I’m with you on 6 or 7 votes in favor, and hope that you are right about the Scalia majority. An ideal majority opinion will also find a way to reference the consensus of the empirical literature as a major factor in favor of ending the Dr. Miles era. The next question, I guess, is whether and how Congress would respond to such an opinion.