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Thursday, June 28, 2007

Leegin v. PSKS

The school cases have gotten much of the attention today in the media and on the law blogs, not to mention generating a whopping 185 pages of opinions from the Supreme Court.  (At the risk of again prompting commentary over my use of the term, I will say it -- WOW!  Supreme Court opinions in tax cases just are never that long, thank goodness.)  But another, really important opinion came out today in Leegin Creative Leather Products, Inc. v. PSKS, Inc., overruling a precedent dating back almost 100 years and concluding that agreements between manufacturers and distributors or retailers that establish minimum resale prices are not per se illegal (and in a comparatively svelte 55 pages of opinions plus syllabus, by my count).  I am neither an economist nor an antitrust expert, so I really have little more than your average educated lawyer to say about the substance of the Leegin opinions.  Still, it's not every day the Supreme Court overrules such established precedent.  Analysis of the case and links to further analysis are available here and here and here.

Posted by Kristin Hickman on June 28, 2007 at 04:58 PM | Permalink


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I am not referring to this opinion alone, although the Leegin dissent has demonstrated quite handily (as cynic obliquely acknowledged) that "stare decisis" has become "stare deceased." While Congress can repair the damage the Court has done to antitrust law (if you contend that it is "damage"; I'm frankly ambivalent on the subject), there is so little remaining of the concept of "binding precedent" in American law that we can no longer legitimately count ourselves among the common-law countries.

Links you might find intriguing in this regard:

* http://law.wlu.edu/lawreview/page.asp?pageid=127 (symposium on the subject, with a list of law review articles)

* http://www.coloradopols.com/showDiary.do?diaryId=3625 (proof that the Tenth Circuit systematically discriminates against pro se litigants)

* http://www.nonpublication.com/ (extensive list of resources with regard to the Anastasoff problem)

In my judgment, Leegin is like Anastasoff: The actual controversy is almost beside the point.

Posted by: dissenter | Jun 30, 2007 7:41:47 AM

won't states just legislate the prohibition right back in?

Posted by: student | Jun 29, 2007 8:31:33 AM

I assume "dissenter" doesn't know much about antitrust law. Randy Picker has a more interesting explanation of how this has been in the works for a while.


The opinions are worth reading a little more closely (or at all) for their discussion of stare decisis.

Posted by: cynic | Jun 29, 2007 1:28:58 AM

Modern judges only follow "binding" precedent when it takes them precisely where they want to go. We don't have a system of law any more; we have the "judocracy" Thomas Jefferson both feared and predicted.

Next stop: Roe v. Wade.

Posted by: Dissenter | Jun 28, 2007 10:24:42 PM

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