The Antitrust Subcommittee of the Senate Committee on the Judiciary will hold a hearing Tuesday morning on whether the Leegin decision is good antitrust policy. It is (see, e.g. our TOTM Leegin archives), but I suspect this hearing may be the beginning of the end for minimum RPM’s rule of reason era.
A Comeback for Dr. Miles?
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Josh, your prediction is one step closer to becoming a reality. On October 30, 2007 Senator Kohl (of Kohl’s Department Store fame) introduced a bill to reinstate the per se prohibition on vertical retail price maintenance. He was joined by Senators Biden and Clinton as sponsors. You can find the bill at 153 Cong Rec S 13581. Stay tuned….
I concur with Paul. I have in other places written that amending the antitrust laws is almost necessarily a losing proposition. (I’m hardly the first; Professor Taft’s 1914 monograph on “The Anti-trust Laws in the Supreme Court” railed against the Clayton Act.) Justice Breyer’s somewhat incautious dissent, in which he concentrated too much on what stare decisis means and too little on the rationale underlying per se rules in the first place, provides fodder for incautious law-making.
State repealers may indeed be more likely, and more likely to come quickly, but I wouldn’t count out a Congress willing to take price gouging legislation seriously.
I think a more likely attack on the decision is through the states–look for NY, CA, or MA to offer state “repealer” laws.
I admittedly have a pretty narrow worldview, but that’s the most depressing thing I’ve read all day. Worse, for a variety of reasons (I see a paper someday), legislation reinstating the per se rule against RPM would be almost impossible to repeal. The politics just don’t work. Sort of a Robinson-Patman redux, and for many of the same reasons. Ugh.