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Old 08-20-2018, 08:31 AM   #196
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Once again, I point out that US law is not the same as Commonwealth law. I keep pointing you to sources, but you don't seem interested in educating yourself on the matter. Anti-trust law in the US has two very different schools of thought. If you accept the one school of thought, that anti-trust's purpose is to protect consumers and competition, then Jacob's ruling was devastatingly correct and got to the heart of the matter.

As far as the red herring about the Supreme Court electing not to hear the case, i.e. grant cert, that once again shows a lack of understanding of how the Supreme Court works. Just because the Supreme Court decides not to hear a case, doesn't mean that they think it was decided correctly. It simply means that they chose not to hear it which could be for a number of reasons. Once again, I've already pointed you to a number of sources that discuss the various reasons that the Supreme Court might choose to hear or not hear a case, but you seem to have decided to ignore those.
A total red herring. My correct statement was:

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With all respect to Jacob he got it badly wrong. Even the best of us can do that. His colleagues on the Appeals Court found he got it badly wrong. They explained why very clearly in the passages above. The Supreme Court elected not to grant cert.
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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That said, I recognize that the publisher defendants, who used Apple both as powerful leverage against Amazon and to keep each other in collusive check, may appear to be more culpable than Apple. And there is also some surface appeal to Apple’s argument that the ebook market, in light of Amazon’s virtually uncontested dominance, needed more competition. But more corporate bullying is not an appropriate antidote to corporate bullying. It cannot have been lawful for Apple to respond to a competitor’s dominant market power by helping rival corporations (the publishers) fix prices, as the District Court found happened here. However sympathetic Apple’s plight and the publishers’ predicament may have been, I am persuaded that permitting “marketplace vigilantism,” Majority Op. at 9, would do far more harm to competition than good, would be disastrous as a policy matter, and is in any event not sanctioned by the Sherman Act.
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Old 08-20-2018, 09:06 AM   #197
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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.
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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Old 08-20-2018, 11:50 AM   #198
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Aren't ALL cases the Supreme Court hears from guilty verdicts?
I was trying to say that Scalia's influence on the Apple case was insignificant. Or did the prosecution use one of Scalia's previous minority opinions when they we're presenting their case?

Once a precedent is set, don't the future courts consider the precedent, so an appeal would need to be on some other aspect of the law?

In case it isn't apparent, IANAL.

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Old 08-20-2018, 01:04 PM   #199
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Aren't ALL cases the Supreme Court hears from guilty verdicts?
Actually no. Guilty only applies to cases the government charging someone with something. They also hear cases where one entity sues another entity.
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Old 08-20-2018, 01:22 PM   #200
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I was trying to say that Scalia's influence on the Apple case was insignificant. Or did the prosecution use one of Scalia's previous minority opinions when they we're presenting their case?

Once a precedent is set, don't the future courts consider the precedent, so an appeal would need to be on some other aspect of the law?

In case it isn't apparent, IANAL.
I used Scalia as an example of a judge whose dissents were very influential, not as an example of a dissent that was influential in this specific case.

In theory, once a precedent is set, then it is suppose to bind the lower courts until it is overturned. In reality, various judges will try to evade the precedence by trying to claim that the precedence doesn't apply in a specific case. One sees this going on right now in the court system with regards to gun control. Every so often, you might see a judge defy the superior court and get slapped down. It's rarely quite so blatant, but it happens sometimes.

I would point out that cases would never be overturned if someone didn't challenge the ruling. For example the Leegin decision overturned a precedent that was set back close to a century before.

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Old 08-20-2018, 09:46 PM   #201
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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.
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.

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Old 08-21-2018, 10:10 AM   #202
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Unfortunately your errors and misunderstandings in this area are so many that I simply aren't inclined at the moment...

I find his topic really stimulating, and confess that I don’t understand it that well. I really wish you would help explain it better. Unfortunately, I only have half an argument to form my own opinion on now.

But the thing that jumped out at me above is that aren’t is a contraction of ‘are not’. Your English seems fine but you wouldn’t say I aren’t inclined; you would say I am not inclined. In which case you should contract ‘I’ and ‘am’ to “I’m not inclined...”

Sally on...
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Old 08-21-2018, 07:52 PM   #203
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I find his topic really stimulating, and confess that I don’t understand it that well. I really wish you would help explain it better. Unfortunately, I only have half an argument to form my own opinion on now.

But the thing that jumped out at me above is that aren’t is a contraction of ‘are not’. Your English seems fine but you wouldn’t say I aren’t inclined; you would say I am not inclined. In which case you should contract ‘I’ and ‘am’ to “I’m not inclined...”

Sally on...
I'm not sure that many of our fellow members would appreciate a more detailed discussion of US anti-trust law. I've probably persevered with the discussion too long anyway, which is a trap I fall into far too often.

Thank you for pointing out my incorrect use of "aren't" in this instance. I'd like to think my spelling and grammar are usually very good but sadly I do make mistakes and even have some persistent bad habits.

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Old 08-21-2018, 10:11 PM   #204
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I'm not sure that many of our fellow members would appreciate a more detailed discussion of US anti-trust law. I've probably persevered with the discussion too long anyway, which is a trap I fall into far too often.

Thank you for pointing out my incorrect use of "aren't" in this instance. I'd like to think my spelling and grammar are usually very good but sadly I do make mistakes and even have some persistent bad habits.
1 You and me too, however I always keep an eye out for your postings as I always find them interesting. I agree however that this topic has been done to death at this time.

2. You would not be human if you did not "make mistakes and even have some persistent bad habits" in your English. I certainly do and I am a well read, well educated Englishman. And do not even get me started on Americans calling what they speak English!
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Old 08-22-2018, 05:55 AM   #205
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And do not even get me started on Americans calling what they speak English!
Not to mention their spelling!
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Old 08-22-2018, 09:00 AM   #206
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Not to mention their spelling!
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Old 08-22-2018, 09:11 AM   #207
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He said not to mention the spelling!
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Old 08-22-2018, 10:43 AM   #208
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And do not even get me started on Americans calling what they speak English!
I like to think that we took something that was pretty good and made improvements on it.
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Old 08-22-2018, 04:37 PM   #209
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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.
Yea, right. I have so many errors that you aren't going to point them out, which of course, might actually require something other than a breezy "you are so wrong". Now, it could be that Jacobs actually took the time to look at the evidence presented at the trial and ignored by Cote rather than just read Cote's opinion and that is why he thought that consumers were not harmed. Certainly, Apple presented studies that countered Amazon's study.

Sure a lot of posters here feel they were harmed, but are you harmed because you can't by an iPhone for what you pay for a cheap Korean, Chinese or Indian smart phone? That doesn't even go into the idea (which is central to Jacob's point) that when a monopoly has 90% of the market, then any competition is likely to help the consumer long term.

The most famous anti-trust suit in US history was Standard Oil, who would sell oil at a loss in markets where they had competition, while using profits in markets without competition to subsidize the practice. Maybe Jacobs just knows his history a little bit better. (just as a note, at that time we are talking about Kerosene rather than gasoline since there were few cars at the time).
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Old 08-22-2018, 08:43 PM   #210
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I like to think that we took something that was pretty good and made improvements on it.
I said do not get me started.
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