Leegin Creative Leather Products, Inc. v. PSKS, Inc.: The Final Blow to the use of Per Se Rules in Judging Vertical Restraints - Why the Court Got it Wrong
Kelly, Christopher S.
MetadataShow full item record
This case note provides an in depth discussion of Leegin Creative Leather Products, Inc. v. PSKS, Inc., in which the United States Supreme Court held that minimum resale price maintenance should be analyzed under the rule of reason, and thus striking down the century-old per se rule against vertical price fixing. After providing a brief overview of antitrust law, with a particular emphasis on Supreme Court vertical restraint jurisprudence, an in depth discussion of both the majority and dissenting Leegin opinions is provided. Next, the note argues that the Court erred in striking down the per se rule by finding that the use of vertical minimum price restraints is not "always or almost always" anticompetitive. Specifically, it will be asserted that the Court erred by failing to examine any empirical data in support of its economic assumptions, discounting the importance of intramarket competition as a check on the market, by not considering if procompetitive uses of vertical minimum price restraints are even practical or likely to be implemented, and by lending no credence to stare decisis considerations. Finally, the note will consider the anticipated impact of the decision on both the market and antitrust enforcement, and will discuss the possible congressional response it may have triggered.