Bench Memos

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Is Leegin Evidence of “Activism?


Several Senate Democrats have asked Elena Kagan about the Roberts Court’s decision in Leegin Creative Leather Products v. PSKS, an antitrust decision they clam is evidence of the Court’s “activism” and pro-business bias because it overturned a decades-old precedent by a 5-4 vote.  Yet as Kagan’s understated responses to these questions suggeted, the decision actually shows nothing of the kind. The Leegin decision held that resale price maintenance agreements would no longer be subject to a per se rule.  This decision did overturn a “96-year-old precedent,” known as Dr. Miles.  But there’s more to the story.  Dr. Miles was a relic from a bygone age.  By 2005 it had  become an outlier in the Court’s antitrust jurisprudence as one of the few extant decisions that had yet to be revisited to account for the Chicago revolution in antitrust law, a revolution that stressed consumer welfare over the structure of corporate arrangements.  In other words, it was precisely the sort of precedent that the Court should have reviewed, as subsequent legal developments and understandings had called its rationale into question.  While she stopped short of defending Leegin, Kagan tried to explain its rationale, but Senate Democrats were uninterested, for understanding Leegin would only undermine their anti-Roberts Court script.


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