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Monday, May 13, 2019

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

Posted by Howard Wasserman on May 13, 2019 at 12:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink


James, re "The problem here with Apple, as it is with Google Play, is that both companies are market makers rather than market participants." It is possible to install software from third-party sources on Android if you change the right system preferences. (Or at least it was, last time I checked.) While there are similarities between the two setups/ecosystems, Google does offer an escape hatch that Apple does not.

Posted by: Jeff Walden | Jun 15, 2019 3:01:27 PM

James, but even without the issue of market maker,all that has taken place in its own arena ( the store site ). Apple has imposed rules on that arena ( for example ethical rules on those developers of Apps ). So, whatsoever, one may claim accountability. It was under their control, direct control, with clear connection all along the chain, to the IPhone itself as their main product.

Its like ( with greater distance in fact ) an owner of a site, that would be accountable many times, for violation or infringement of copyrights of third party infringed, although, not infringed by him at all.

So, price fixing, or responsibility for prices, is not the sole issue here it seems , although one needs greater understanding of the concrete issue here ( like the contractual relationship of parties).But, interesting,that the attitude of Gorsuch , was rather based on the philosophy of tort claims and alike( the pass on theory ).


Posted by: El roam | May 13, 2019 6:43:48 PM

I agree with El Roam that the analogy is flawed but for a different reason. The problem here with Apple, as it is with Google Play, is that both companies are market makers rather than market participants. It is the fact that Apple is a market makers that imposes the duty of care, a duty that would be absent in a free market.

Posted by: James | May 13, 2019 6:10:01 PM

Very interesting one. Particularly, that dissenting opinion of Gorsuch, claiming that, I quote:

Under ancient rules of proximate causation, the " general tendency of the law, in regard to damages at least, is not to go beyond the first step "

End of quotation:

As such, the person or consumer damaged, may recover only from he who has caused him actually the direct damage. As illustration, he asserts that, I quote:

So,for example, if a defendant’s false advertising causes harm to one of its competitors, the competitor can sue the false advertiser under the Lanham Act. But if the competitor is unable to pay its rent as a result, the competitor’s landlord can’t sue the false advertiser, because the landlord’s harm derives from the harm to the competitor.

End of quotation:

But this is not an analogous one. This is because, in that case, Apple, at the top of the chain, has direct responsibility for its conduct ( whether contractual, whether in equity or anti trust ). He has dismissed the issue of the legal" duty of care ". In that illustration mentioned, the false advertiser has no " duty of care " to the landlord ( in noway so ). So, causation is rendered senseless indeed, without proving duty of care simply.For, duty of care, improves or defines responsibility, and improves conduct of persons and firms,well aware to a narrow well defined duty . In that case, Apple had indeed, duty of care, to its consumers, purchasing not butter or meat, but apps from its store, for the I phone indeed.


Posted by: El roam | May 13, 2019 5:34:39 PM

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