Leegin Decision on Thursday? Dr. Miles Makes Strange Bedfellows.
Thom Lambert reads the tea leaves
The Supreme Court is wrapping up its term any day now, and no still no word on Leegin. Tom Goldstein from SCOTUSBLOG tells us the decision’s coming on Thursday. He also predicts that the author will be Justice Stevens, who has an antitrust background and hasn’t written an opinion since March. Say it ain’t so! Justice Stevens, you may recall, was one of the two justices who, at oral argument, appeared inclined not to overrule Dr. Miles. (Souter was the other. Breyer was ambiguous.) I stand by my earlier prediction of a 7-2 (or maybe 6-3) decision overruling Dr. Miles, with a majority opinion by Justice Scalia. I also reaffirm my earlier promise to eat my hat if Dr. Miles is not overruled. (Mind you, there’s no consideration for that promise, nor (presumably) has there been any justifiable reliance upon it.)Ah, the twisted history of Dr. Miles! Recall that one of the most determined promoters of resale price maintenance was no other than Louis Brandeis, the people’s lawyer! For
Every dealer, every small stationer, every small druggist, every small hardware man, can be made a purveyor of that article [under RPM] … and you have stimulated, through the fixed price, the little man as against the department store, and as against the large unit which may otherwise monopolize that trade.” (Brandeis tesimony before the House Committee on Patents, 1915).Dr. Miles makes strange bedfellows, indeed. Stay tuned!
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