This Essay considers whether the Roberts Court would now overrule the last bastion of the Harvard School-the rule against product tying-if given the opportunity. The economic arguments against per se treatment of tie-ins apply a fortiori to those against resale price maintenance. In addition, applying the line of thought followed by the majority in Leegin leads inexorably to the conclusion that the per se rule proscribing tying arrangements should be similarly overruled. Part II explains the business practice of resale price maintenance and the law's formerly mistaken understanding of its consequences. The Leegin case will then be introduced and compendiously detailed. Assuming familiarity with that decision, Part III asks whether stare decisis has been dealt a mortal blow, thereby rendering abortion rights less secure in the long run. Having answered that question in the negative, the Essay proceeds to its most important question: if not relevant to stare decisis, what are the repercussions of the judgment? The axiomatic point is that those seeking to invalidate minimum resale prices will now face an uphill battle. The Essay discusses which arguments would be likely to prevail post-Leegin. The more interesting insight, however, relates to an unrelated area of antitrust law, product tying. The qualified per se prohibition of tie-ins rests on a flawed economic interpretation highly reminiscent of the specious reasoning that supported the rule in Dr. Miles. I suggest that tie-ins would perhaps be subjected to rule of reason analysis were the Court to subsequently revisit the question.
On the Ramifications of Leegin Creative Leather Products, Inc. PSKS, Inc.: Art Tie-Ins Next Essay ,
56 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss2/6