Volvo v. Reeder: “Conservative Activism” at the Supreme Court?
Peggy Zwisler just published an excellent article: Volvo Trucks v. Reeder-Simco: Judicial Activism at the Supreme Court, in 20 Antitrust 40-43 (2006). (Unfortunately, there’s no online edition. Why not, actually?). In Volvo, three courts, the district court, the circuit court, and the Supreme Court, all agreed on what the Robinson-Patman Act says and thus on the controlling law. Yet the plaintiffs, victorious in the district court and the court of appeals, lost before the Supreme Court. How is that possible?
The Supreme Court achieved its reversal by dismissing all of the evidence upon which the jury verdict was likely based as first, irrelevant, and second, of insufficient quality to sustain the jury’s verdict. To do so, the Court compartmentalized Reeder’s evidence, selected Volvo’s interpretation of it, weighed it, and, in short, acted like a jury instead of an appellate court. (Id., at 42).That interpretation also explains Justice Stevens’ dissent. Stevens is no friend of the Robinson-Patman Act, but was convinced that the jury verdict deserved greater deference.
One minor point. It is often said that “the explicit goal of the Robinson-Patman Act [is] to protect inefficient competitors from elimination,” which brings the Act into conflict with the promotion of allocative and productive efficiencies that are commonly identified as the unifying goals of antitrust. That view, however, is not universally shared. While the legislative history clearly shows that the Act was intended to protect small businesses from chain stores, there is also ample evidence that only equally efficient disfavored purchasers should be protected from price discrimination. That doesn’t cure the many ills of the Robinson-Patman Act, but it goes a long way toward harmonizing the Act with the goals of antitrust as we understand them today. Andrew Gavil provides an excellent summary of the legislative history supporting the “equally efficient” reading in Secondary Line Price Discrimination and the Fate of Morton Salt: To Save it Let it Go, 48 Emroy L.J. 1057 (1999).
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July 31st, 2006 at 7:39 pm
Peggy made this point at the Spring Meeting. Very interesting, indeed. I will take doctrinal impurities when it comes to RPA, since I agree with the effect of Reeder: to prevent the use of the RPA as a federal supplement to state franchise law, as I’ve said here.
August 1st, 2006 at 10:53 am
[...] 1. Hanno on Peggy Zwisler’s article in 20 Antitrust 40-43 (2006): Volvo Trucks v. Reeder-Simco: Judicial Activism at the Supreme Court. Hanno takes some issue with the characterization of the Robinson-Patman Act as being aimed exclusively at protecting competitors, rather than competition, as many of its critics (like me) would have it. Hanno notes: “That view, however, is not universally shared. While the legislative history clearly shows that the Act was intended to protect small businesses from chain stores, there is also ample evidence that only equally efficient disfavored purchasers should be protected from price discrimination. That doesn’t cure the many ills of the Robinson-Patman Act, but it goes a long way toward harmonizing the Act with the goals of antitrust as we understand them today. Andrew Gavil provides an excellent summary of the legislative history supporting the “equally efficient” reading in “Secondary Line Price Discrimination and the Fate of Morton Salt: To Save it Let it Go,” 48 Emory L.J. 1057 (1999).” [...]