http://lawprofessors.typepad.com/antitrustprof_blog/2007/01/superprecedenta.html

“The per se treatment of minimum RPM does not strike as controversial as maximum RPM or the presumption of market power.”

I disagree. Per se analysis is properly reserved for those contractual arrangements that are known, through experience and empirical verification, to restrict market output or increase market price. For instance, Judge Ginsburg takes this position in Three Tenors when he explains that per se analysis is only appropriate because of “the close family resemblance between the suspect practice and another practice that already stands convicted in the court of consumer welfare.” Per se rules are generally justified on this basis.

We simply don’t have that with Max or Min RPM. And if we are to believe the empirical literature on Min RPM, we aren’t even close to a state of evidence that would support a per se rule. To the contrary, the bulk of evidence suggests that these restraints are generally associated the output-increasing provision of promotional services.

Nonetheless, there must be a reason why the Court granted cert, and as far as treatment of precedent, super or otherwise, the Court’s terrific opinion in Illinois Tool last term is a good example of how the Court can and should deal with precedent that seems to fly against academic and other conventional wisdom. The per se treatment of minimum RPM does not strike as controversial as maximum RPM or the presumption of market power.

First, though, it’s not terribly helpful to talk about “superprecedents” without some agreement on what we mean by that term. It’s certainly not a notion that appears in any formal jurisprudence, at least to my knowledge.

That said, I would define a “superprecedent” simply as a case that is unthinkable or impossible to overrule. (I’d probably add some gloss that the case has to be important. Thus, a decision that definitively interprets a narrow and rarely applied statutory provision is unlikely to merit the “super precedent” label.)

Now, what factors might make a case unthinkable or impossible to overrule?

I can think of three important considerations: (1) strong general consensus as to the correctness of the decision, (2) public reliance on the decision, and (3) reliance of significant bodies of law on the decision.

Thus, Marbury qualifies as a superprecedent. There’s a strong consensus (albeit not unanimous) in constitutional supremacy and that it is the province of the judiciary to “say what the law is.” And more important, there are tremendous dependencies in the public sphere but even moreso in all areas of law upon this principle

And, for the same reason, there are few antitrust decisions that likely qualify. Brunswick on antitrust injury is the closest I can think of, as it establishes the bedrock jurisdictional principle of antitrust injury, defining the scope and applicability of antitrust laws.

Asking the question in the negative is perhaps a more useful way of defining a superprecedent. How much harm would be done, to settled business expectations and to settled bodies of law, by a hypothetical reversal of the proffered decision?

As for Dr. Miles, I don’t see that its reversal would result in significant real-world effect in these terms.

In fact, I’d suggest that a decision that establishes that certain conduct is subject to per se versus rule of reason analysis is not likely to be a superprecedent. Rule of reason treatment does not mean the conduct at issue is per se lawful. Such a decision really represents a fairly small change in the degree of risk faced by a business engaging in the conduct.

Thanks for reminding us of Kahn and Continental. Let’s hope the Roberts Court similarly rejects the notion of antitrust superprecedent and distances itself from any “it is too late in the day” reasoning.

(And Josh–excellent note.)

“[s]tare decisis is not an inexorable command. In the area of antitrust law, there is a competing interest, well-represented in this Court’s decisions, in recognizing and adapting to changed circumstances and the lessons of
accumulated experience . . . . Accordingly, this Court has reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question.”

Is this passage reconcilable with the famous “far too late” language in Jefferson Parish? And if we are to take the State Oil v. Khan language seriously, what about merger cases? Surely Von’s Grocery and Brown Shoe fit the Court’s criteria (theoretical underpinnings called into question, heavily scholarly criticism … (see, e.g. this *fascinating student note on Von’s Grocery, 48 UCLA L. Rev. 743!)). Why not merger cases?

Another explicit overruling of an antitrust decision is the overruling in Continental (which applies the rule of reason to vertical territorial restraints) of Schwinn (which had condemned them per se).

Other antitrust rulings have been overruled less explicitly (e.g., California Dental seems implicitly to have overruled the “quick look” doctrine of NCAA; NYNEX seems implicitly to have partly overruled the per se rule concerning vertical group boycotts seen in Klor’s and Fashion Originators).

So it won’t be at all surprising if the Dr. Miles gets overruled. Indeed, it seems unlikely that cert would have been granted if it were not the case that at least four Justices are seriously thinking about overruling Dr. Miles.

Every year I tell my class that Dr. Miles is on thin ice, just as Albrecht was prior to Khan. This year, the ice is likely at last to crack!