Bench Memos

Please Welcome Kansas to the Judicial Hellhole List

Last week the Kansas Supreme Court decided a case that has created an enormous level of uncertainty for companies that do business in Kansas.  Ted Frank has the details, but here is a long quote:

Last week, [plaintiffs’ lawyers] hit paydirt with another lawsuit against Leegin Creative Leather Products, as the Kansas Supreme Court held resale price maintenance per se illegal. But the decision goes beyond that, arguing that Kansas law holds other so-called restraints on trade illegal, even when adjudged “reasonable” (i.e., beneficial to consumers) by federal antitrust standards. Such a rule would effectively hold illegal common business practices recognized as proper for decades, and would be a pure wealth transfer from society to lawyers, and from out-of-state businesses and consumers to Kansas. It would force interstate businesses who could not readily operate differently in Kansas than in the rest of the country to change their practices, to the detriment of consumers in all fifty states. It’s not just bad policy, but an impingement on interstate commerce and should be held a violation of the Commerce Clause for its attempt to expropriate the benefits of interstate commerce. 

I’d be negligent if I didn’t mention that Kansas is one of 13 states that use the Missouri Plan to select judges.

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