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Originally Posted by darryl
A total red herring. My correct statement was:
You repeat your two strands of US anti-trust law like a mantra. Jacob's dissenting judgement is not a straightforward application of one of two conflicting schools of thought. It is an incorrect application of precedent and of the rule of reason for the reasons pointed out by his colleagues in the majority. The majority applied the per se rule, whilst Jacobs would have applied the rule of reason to sanction Apple's conduct. However, Livingstone considered the rule of reason and came to the opposite conclusion. And the other member of the majority, Lohier, whilst having some sympathy with Apple and the Publishers, also recognised the fundamental problem with Apple's position, seizing on the single aspect of market vigilantism as decisive of any defence Apple would have had under the rule of reason if it had applied.
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You are confused. Per se has nothing to do with the two anti-trust approaches. Try reading Bork's book on anti-trust. That book is the theoretical basis for Jacobs' dissent. It is also the basis of the controlling Supreme Court decision, Leegin vs PSKS which established the rule of reason. However, rule of reason verses per se isn't the two schools of thought.