Are Dr. Miles’ Days Numbered?
Maybe. WSJ Law Blog reports that SCOTUS may revisit the nearly century old precedent applying the per se rule to minimum resale price maintenance (RPM). Dr. Miles may well be the last vestige of antitrust before consumer welfare’s promotion as the guiding principle of the Sherman Act, which is to say, before economics had a significant role in antitrust jurisprudence. As of today, SCOTUS has not granted cert in Leegin Creative Leather Products v. PSKS, but its agreement to stay a 5th Circuit judgment upholding Dr. Miles may well signal that cert is forthcoming. While there is still some disagreement between antitrust scholars on the issue (Georgetown’s Robert Pitofsky is Dr. Miles‘ most well known advocate), I would venture to guess — and it is not more than a guess — that the majority of antitrust scholars and economists believe that Dr. Miles is misguided.