Lao, Marina --- "Resale Price Maintenance: A Reassessment of its Competitive Harms and Benefits" [2011] ELECD 745; in Drexl, Josef; Grimes, S. Warren; Jones, A. Clifford; Peritz, J.R. Rudolph; Swaine, T. Edward (eds), "More Common Ground for International Competition Law?" (Edward Elgar Publishing, 2011)

Book Title: More Common Ground for International Competition Law?

Editor(s): Drexl, Josef; Grimes, S. Warren; Jones, A. Clifford; Peritz, J.R. Rudolph; Swaine, T. Edward

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849803946

Section: Chapter 5

Section Title: Resale Price Maintenance: A Reassessment of its Competitive Harms and Benefits

Author(s): Lao, Marina

Number of pages: 27

Extract:

5. Resale price maintenance:
A reassessment of its competitive
harms and benefits
Marina Lao*

1 INTRODUCTION

In a sharply divided five to four decision in Leegin Creative Products,
Inc. v PSKS, Inc.,1 the US Supreme Court in 2007 overruled the nearly
century-old precedent of Dr. Miles2 to end per se condemnation of resale
price maintenance (RPM)3 in favor of a rule of reason analysis. But the
case has hardly settled the debate on the economics of, or the appropri-
ate legal treatment for, RPM. While some commentators view RPM as
often procompetitive and Leegin as long overdue,4 others disagree with
the majority's decision.5 Indeed, bills were introduced in Congress to


* I would like to thank Josef Drexl, Warren Grimes, Rudolph Peritz, Robert
Steiner, Charles Sullivan and participants in the 2009 ASCOLA conference for
helpful comments. Thanks are also due to Eric Wolf and especially Nicholas
Dimakos (Seton Hall, Class of 2011) for excellent research assistance.
1 551 US 877, 127 S Ct 2705 (2007).
2 Dr. Miles Med. Co. v John D. Park & Sons Co., [1911] USSC 50; 220 US 373 (1911).
3 For convenience, unless otherwise specified, I use the term RPM without

the qualifier `minimum' to refer only to minimum resale price maintenance (not
maximum RPM), since minimum RPM is the focus of this chapter.
4 See, e.g., B Klein, `Competitive Resale Price Maintenance in the Absence

of Free-Riding' (2009) 76 Antitrust LJ 431; JD Wright, `Overshot the Mark? A
Simple Explanation of ...