There’s been a bit of discussion about the “most destructive” decision that is good law around the blogs, e.g. here and here, in response to John McCain’s criticism of Boumedine calling it “one of the worst decisions in the history of this country.” The line of discussion led me to think about the titular question. Antitrust law has the fairly odd feature that lower court decisions are overturned at a fairly low rate. There are a handful of SCOTUS reversals of old, “bad” precedent, e.g. Leegin overturned Dr. Miles, State Oil overturned Albrecht, Independent Ink overturned the rule that a patent holder was presumed to have market power in tying cases (my analysis here). In fact, prior to Leegin, the SCOTUS had been routinely reversing some bad prior precedent with little discussion (compare the reaction to Leegin to the unanimous State Oil decision on Max RPM in 1997 in which there was zero talk of stare decisis!).

Read the full piece here.

The Chronicle of Higher Education provides a useful summary of the OS-Liebowitz debate on file sharing we’ve been following for a while (thanks to David Glenn for the tip). I like this description of the original piece by Oberholzer-Gee and Strumpf…

Read the full piece here. 

Stan Liebowitz has posted a reply to Oberholzer-Gee/Strumpf’s (O/S) referee report/ reply to Liebowitz’s original comment submitted and rejected by the JPE for publication (got all that?) (HT: Newmark and Peter). Stan includes email exchanges between himself and OS concerning access to the data (O/S did not allow access), copies of the rejection letter from Steve Levitt, and responds to the O/S reply on the merits.

Read the full piece here.

I’ve posted to SSRN my new article (co-authored by my colleague Bruce Kobayashi), Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup. We presented an earlier version of our analysis at the George Mason/ Microsoft Conference on the Law and Economics of Innovation and benefited significantly from comments from the discussants and participants. We take an approach grounded in the economics of federalism and recent Supreme Court antitrust jurisprudence in arguing for substantive limits on antitrust enforcement of patent holdup in favor of reliance on patent law as well as state common law. Along the way we discuss recent cases and enforcement actions involving patent holdup, including the D.C. Circuit’s decision in Rambus, Broadcom, and N-Data. If you’re a reader interested in patent holdup and related issues, please give the paper a read. Comments welcome (here or email me).

Read the full piece here.

2008 has been a busy year for Harvard Professor Einer Elhauge so far from the looks of his SSRN page (not to mention advising Senator Obama on legal policies). He’s posted three new working papers covering a diverse set of antitrust topics…

Read the full piece here. 

The D.C. Circuit’s opinion is available here.  Here is one of the key passages explaining the D.C. Circuit’s logic…

Read the full piece here. 

Tom Barnett (DOJ Antitrust AG) gave a speech February 29th to the Federalist Society where he touched upon a number of interesting issues we’ve discussed from time to time here at TOTM.  Some highlights…

Read the full piece here. 

I’d have to say the answer is yes (duh). Radiohead’s In Rainbows made a stunning “official” debut, coming out at number 1 on the Billboard chart with 122,000 US sales in the first week.

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The results are in: Radiohead did . . . ok.  Before I share the specifics, let me remind you of what one seemingly prescient prognosticator said a few weeks ago:

My prediction: They will receive an average price of $2 and a median price of $0. 

So what happened?

Read the full piece here.