Comments on: Analysis: What’s best for consumers — price or service? http://www.scotusblog.com/2007/03/analysis-whats-best-for-consumers-price-or-service/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Daniel Thomas http://www.scotusblog.com/2007/03/analysis-whats-best-for-consumers-price-or-service/#comment-11036 Daniel Thomas Wed, 28 Mar 2007 02:19:26 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-whats-best-for-consumers-price-or-service/#comment-11036 I remain puzzled by the direction of argument in this case. The arguments center around what is best for consumers and where a particular practice is anticompetitive. But when I go back and read the original opinion I am struck by none of these things as being central to the courts holding. Rather, it seems that the court objects to it based on respect for private property. If a seller can *dictate* to a buyer what is done with a product after ownership has been transfered (selling it at a certain price) respect for private property is weakened. And I find it amazing that Scalia wouldn't see this and be all over it.... It is ownership which is the key idea, not consumer welfare. It is great example, IMHO, of how the legal process can obscure rather than illuminate. I remain puzzled by the direction of argument in this case. The arguments center around what is best for consumers and where a particular practice is anticompetitive. But when I go back and read the original opinion I am struck by none of these things as being central to the courts holding. Rather, it seems that the court objects to it based on respect for private property. If a seller can *dictate* to a buyer what is done with a product after ownership has been transfered (selling it at a certain price) respect for private property is weakened. And I find it amazing that Scalia wouldn’t see this and be all over it…. It is ownership which is the key idea, not consumer welfare.

It is great example, IMHO, of how the legal process can obscure rather than illuminate.

]]> By: Jacques McKenzie http://www.scotusblog.com/2007/03/analysis-whats-best-for-consumers-price-or-service/#comment-11035 Jacques McKenzie Tue, 27 Mar 2007 18:35:55 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-whats-best-for-consumers-price-or-service/#comment-11035 Souter and Alito are the votes that matter. They appear to agree. Souter and Alito are the votes that matter. They appear to agree.

]]> By: Jacob Berlove http://www.scotusblog.com/2007/03/analysis-whats-best-for-consumers-price-or-service/#comment-11034 Jacob Berlove Tue, 27 Mar 2007 00:35:04 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-whats-best-for-consumers-price-or-service/#comment-11034 Jacques McKenzie, I would be very cautious before (potentially) underestimating CJ Roberts' power to persuade. Jacques McKenzie,
I would be very cautious before (potentially) underestimating CJ Roberts’ power to persuade.

]]> By: Jacob Berlove http://www.scotusblog.com/2007/03/analysis-whats-best-for-consumers-price-or-service/#comment-11033 Jacob Berlove Tue, 27 Mar 2007 00:31:50 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-whats-best-for-consumers-price-or-service/#comment-11033 Note that even under the current regime, a retail store is free to sell goods at a higher price, and market its merchandise by claiming better quality, service, or selection. Thus a consumer can choose whether to (to use a metaphor) fly the cheaper airline or the airline with better service. Whereas should <i>Dr. Miles</i> be overruled, in many cases, resale price maintenence will be held to be legal, and stores will have no option at all of competing based on price if they want to go below the price floor. That would allow manufacturers to force customers to make their choice based on quality, and eliminate the "cheap, no frills airline option" entirely. Seems to me a good argument for keeping <i>Dr. Miles</i>. Note that even under the current regime, a retail store is free to sell goods at a higher price, and market its merchandise by claiming better quality, service, or selection. Thus a consumer can choose whether to (to use a metaphor) fly the cheaper airline or the airline with better service. Whereas should Dr. Miles be overruled, in many cases, resale price maintenence will be held to be legal, and stores will have no option at all of competing based on price if they want to go below the price floor. That would allow manufacturers to force customers to make their choice based on quality, and eliminate the “cheap, no frills airline option” entirely. Seems to me a good argument for keeping Dr. Miles.

]]> By: Jacques McKenzie http://www.scotusblog.com/2007/03/analysis-whats-best-for-consumers-price-or-service/#comment-11032 Jacques McKenzie Mon, 26 Mar 2007 20:30:05 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-whats-best-for-consumers-price-or-service/#comment-11032 While the above post focuses on the oralists who received the most questioning, it ignores the one oralist who went through her argument with minimal questioning and therefore whose argument is likeliest to carry the day and be reflected in the resulting opinion. While the above post focuses on the oralists who received the most questioning, it ignores the one oralist who went through her argument with minimal questioning and therefore whose argument is likeliest to carry the day and be reflected in the resulting opinion.

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