Quote:
Originally Posted by pwalker8
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.
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I'm not going to bother even trying to correct your profound misunderstanding of your own country's anti-trust law. Let's assume that the majority judges in the Appeal did indeed make an error in applying one of your two "anti-trust approaches". That error does not dictate the result. What it would then mean is that the rule of reason should have been applied. And guess what? The majority were kind enough to consider what would have happened had the per se rule not applied. Jacob's in the minority applied the rule of reason very superficially because he thought it was obvious that Apple's behaviour did not harm consumers. There are many even on these forums who beg to differ and welcomed their compensation cheques. Livingstone considered and applied the rule of reason and came to the contrary conclusion. Lohier, the other member of the majority, considered only one factor which he thought was alone decisive against Apple's argument. This was the judicial vigilantism argument referred to in my previous post. As I recall the original Judge also considered a rule of reason analysis in case of error on the per se approach. To summarise, 3 of the 4 experienced judges involved in the matter decided the per se approach applied, but nevertheless considered the rule of reason would not have saved Apple. On neither of your two approaches would Apple have succeeded.
I'm not going to bother correcting your misunderstandings of Leegin, which are quite obvious if you read (and understand) the majority judgement. Unfortunately your errors and misunderstandings in this area are so many that I simply aren't inclined at the moment to expend any further time in trying to correct them. One of the great things about these forums is that we can test our views and sometimes even bring ourselves to correct them when obviously in error. Please think about it.