Quote:
Originally Posted by SteveEisenberg
I can't put my finger on why, but I don't see them dividing on Mac vs. PC lines.
One big difference between appeals court and supreme court judges is the likelihood of being a trade book author.
The published authors on the court, I suspect, think that their eBooks are worth a heck of a lot more than Amazon wants to charge. And the ones who aren't big-five-published authors probably aspire to be. While this doesn't lead, in a straight logical line, to an Apple victory, I think it would be a factor it the Supreme Court actually took the case.
I do realize that the Supremes probably would not take the case, since they accept for review only a small portion of cases sent them.
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The key question as to whither or not the Supreme Court would take the case (assuming that Apple continues the appeals which isn't necessarily a done deal) is a point that is expressed in the dissent written by Judge Dennis Jacobs. To wit -
"On this appeal, a majority affirms only on the ground of liability per se. See Op. of Judge Lohier, ante, at 1. Since I would reverse, I consider as well the rule of reason. Judge Livingston’s opinion argues (for herself alone) that the judgment could be affirmed on that alternative ground."
He then says that the majority committed 3 errors (and I will paraphrase
1) the finding is in conflict with the Leegin's ruling which says that rule of reason should be used for a vertical agreement designed to facilitate a horizontal cartel.
2) The court should have considered Apple as a competitor to Amazon.
3) Apple's conduct is unambiguously pro-competitive.
The first one is why I think the Supremes would agree to hear it, assuming that Apple continues the appeal. In general, they are more likely to hear an appeal that disagrees with the most recent Supreme Court case (i.e. Leegin's) on the matter. Leegin's was decided in 2007, written by Kennedy with Roberts, Scalia, Thomas and Alito in agreement. All five are still on the court.