leegin creative leather products psks dba kay kloset kay shoes argued march decided june given policy refusing sell retailers discount goods suggested prices petitioner leegin stopped selling respondent psks store psks filed suit alleging inter alia leegin violated antitrust laws entering vertical agreements retailers set minimum resale prices district excluded expert testimony leegin pricing policy procompetitive effects ground dr miles medical john park sons makes per se illegal sherman act manufacturer distributor agree minimum price distributor charge manufacturer goods trial psks alleged leegin retailers agreed fix prices leegin argued pricing policy lawful jury found psks appeal fifth circuit declined apply rule reason leegin vertical agreements affirmed finding dr miles per se rule rendered irrelevant procompetitive justifications leegin policy held dr miles overruled vertical price restraints judged rule reason pp accepted standard testing whether practice restrains trade violation rule reason requires factfinder weigh circumstances continental gte sylvania including specific information relevant business restraint history nature effect state oil khan rule distinguishes restraints anticompetitive effect harmful consumer procompetitive effect consumer best interest however restraint deemed unlawful per se need study individual restraint reasonableness light real market forces eliminated business electronics sharp electronics resort per se rules confined restraints always almost always tend restrict competition decrease output ibid thus per se rule appropriate courts considerable experience type restraint issue see broadcast music columbia broadcasting system predict confidence restraint invalidated almost instances rule reason see arizona maricopa county medical pp reasons upon dr miles relied justify per se rule necessary examine first instance economic effects vertical agreements fix minimum resale prices determine whether per se rule nonetheless appropriate considering issue original matter rule reason per se rule unlawfulness appropriate standard judge vertical price restraints pp economics literature replete procompetitive justifications manufacturer use resale price maintenance recent studies subject also cast doubt conclusion practice meets criteria per se rule justifications vertical price restraints similar vertical restraints minimum resale price maintenance stimulate interbrand competition among manufacturers selling different brands type product reducing intrabrand competition among retailers selling brand important antitrust laws primary purpose protect interbrand competition khan supra single manufacturer use vertical price restraints tends eliminate intrabrand price competition turn encourages retailers invest services promotional efforts aid manufacturer position rival manufacturers resale price maintenance may also give consumers options choose among brands brands brands falling absent vertical price restraints retail services enhance interbrand competition might underprovided discounting retailers free ride retailers furnish services capture demand services generate retail price maintenance also increase interbrand competition facilitating market entry new firms brands encouraging retailer services provided even absent free riding pp setting minimum resale prices may also anticompetitive effects unlawful price fixing designed solely obtain monopoly profits ever present temptation resale price maintenance may example facilitate manufacturer cartel used organize retail cartels also abused powerful manufacturer retailer thus potential anticompetitive consequences vertical price restraints must ignored underestimated pp notwithstanding risks unlawful conduct stated degree confidence retail price maintenance always almost always tend restrict competition decrease output business electronics supra vertical agreements either procompetitive anticompetitive effects depending circumstances formed limited empirical evidence available suggest efficient uses agreements infrequent hypothetical per se rule adopted administrative convenience alone rules counterproductive increasing antitrust system total cost prohibiting procompetitive conduct antitrust laws encourage per se rule justified possibility higher prices absent showing anticompetitive conduct antitrust laws primarily designed protect interbrand competition lower prices later result respondent argument overlooks general interests manufacturers consumers aligned respect retailer profit margins resale price maintenance economic dangers rule reason apply courts diligent eliminating anticompetitive uses market factors relevant inquiry number manufacturers using practice restraint source manufacturer market power rule reason designed used ascertain whether transactions anticompetitive procompetitive standard principle applies vertical price restraints courts gain experience restraints applying rule reason course decisions establish litigation structure ensure rule operates eliminate anticompetitive restraints market provide guidance businesses pp stare decisis compel continued adherence per se rule sherman act treated statute prohibition restraint trade evolves meet dynamics present economic conditions rule reason adjudication implements approach respected economics authorities suggest per se rule inappropriate department justice federal trade commission recommend replacing per se rule rule reason addition overruled precedents subsequent cases undermined doctrinal underpinnings dickerson surprising distanced dr miles rationales case decided long sherman act enacted little experience antitrust analysis eight years dr miles reined decision holding manufacturer suggest resale prices refuse deal distributors follow colgate recently tempered limited overruled strict vertical restraint prohibitions see gte sylvania supra dr miles rule also inconsistent principled framework makes little economic sense analyzed vertical restraint cases deciding procompetitive effects resale price maintenance insufficient overrule dr miles call question cases colgate gte sylvania respondent arguments reaffirming dr miles based stare decisis require different result pp fed appx reversed remanded kennedy delivered opinion roberts scalia thomas alito joined breyer filed dissenting opinion stevens souter ginsburg joined leegin creative leather products petitioner psks dba kay kloset kay shoes writ certiorari appeals fifth circuit june justice kennedy delivered opinion dr miles medical john park sons established rule per se illegal sherman act manufacturer agree distributor set minimum price distributor charge manufacturer goods question presented instant case whether overrule per se rule allow resale price maintenance agreements judged rule reason usual standard applied determine violation abandoned rule per se illegality vertical restraints manufacturer imposes distributors respected economic analysts furthermore conclude vertical price restraints procompetitive effects hold dr miles overruled vertical price restraints judged rule reason petitioner leegin creative leather products leegin designs manufactures distributes leather goods accessories leegin began sell belts brand name brighton brighton brand expanded variety women fashion accessories sold across retail establishments part independent small boutiques specialty stores leegin president jerry kohl also interest stores sell brighton products leegin asserts least products small retailers treat customers better provide customers services make shopping experience satisfactory larger often impersonal retailers kohl explained want consumers get different experience get sam club ca get kind experience support customer service store like record respondent psks psks operates kay kloset women apparel store lewisville texas kay kloset buys different manufacturers one time sold brighton brand first started purchasing brighton goods leegin began selling brand store promoted brighton example ran brighton advertisements brighton days store kay kloset became destination retailer area buy brighton products brighton store important brand accounted percent profits leegin instituted brighton retail pricing promotion policy following policy leegin refused sell retailers discounted brighton goods suggested prices policy contained exception products selling well retailer plan reordering letter retailers establishing policy leegin stated age mega stores like macy bloomingdales may others consumers perplexed promises product quality support product believe lacking large stores consumers confused ever popular sale sale sale etc leegin choose break away pack selling specialty stores specialty stores offer customer great quality merchandise superb service support brighton product days year consistent basis realize half equation leegin producing great brighton product half retailer creating great looking stores selling products quality manner ibid leegin adopted policy give retailers sufficient margins provide customers service central distribution strategy also expressed concern discounting harmed brighton brand image reputation year instituting pricing policy leegin introduced marketing strategy known heart store program see offered retailers incentives become heart stores exchange retailers pledged among things sell leegin suggested prices kay kloset became heart store soon leegin created program leegin employee visited store found unattractive parties appear agreed kay kloset heart store beyond despite losing status kay kloset continued increase brighton sales december leegin discovered kay kloset marking brighton entire line percent kay kloset contended placed brighton products sale compete nearby retailers also undercutting leegin suggested prices leegin nonetheless requested kay kloset cease discounting request refused leegin stopped selling store loss brighton brand considerable negative impact store revenue sales psks sued leegin district eastern district texas alleged among claims leegin violated antitrust laws enter ing agreements retailers charge prices fixed leegin leegin planned introduce expert testimony describing procompetitive effects pricing policy district excluded testimony relying per se rule established dr miles trial psks argued heart store program among things demonstrated leegin retailers agreed fix prices leegin responded established unilateral pricing policy lawful applies concerted action see colgate jury agreed psks awarded million pursuant district trebled damages reimbursed psks attorney fees costs entered judgment leegin amount appeals fifth circuit affirmed fed appx per curiam appeal leegin dispute entered vertical agreements retailers rather contended rule reason applied agreements appeals rejected argument correct explain remained bound dr miles ecause consistently applied per se rule vertical minimum agreements fed premise appeals held district abuse discretion excluding testimony leegin economic expert per se rule rendered irrelevant procompetitive justifications leegin pricing policy granted certiorari determine whether vertical minimum resale price maintenance agreements continue treated per se unlawful ii section sherman act prohibits contract combination form trust otherwise conspiracy restraint trade commerce among several ch stat amended interpreted proscribe contracts see board trade chicago never taken literal approach language texaco dagher rather repeated time outlaw unreasonable restraints state oil khan rule reason accepted standard testing whether practice restrains trade violation see texaco supra rule factfinder weighs circumstances case deciding whether restrictive practice prohibited imposing unreasonable restraint competition continental gte sylvania appropriate factors take account include specific information relevant business restraint history nature effect khan supra whether businesses involved market power significant consideration see copperweld independence tube equating rule reason inquiry market power market structure designed assess restraint actual effect see also illinois tool works independent ink design function rule distinguishes restraints anticompetitive effect harmful consumer restraints stimulating competition consumer best interest rule reason govern restraints types deemed unlawful per se khan supra per se rule treating categories restraints necessarily illegal eliminates need study reasonableness individual restraint light real market forces work business electronics sharp electronics must acknowledged per se rule give clear guidance certain conduct restraints per se unlawful include horizontal agreements among competitors fix prices see texaco supra divide markets see palmer brg per curiam resort per se rules confined restraints like mentioned always almost always tend restrict competition decrease output business electronics supra internal quotation marks omitted justify per se prohibition restraint must manifestly anticompetitive effects gte sylvania supra lack redeeming virtue northwest wholesale stationers pacific stationery printing internal quotation marks omitted consequence per se rule appropriate courts considerable experience type restraint issue see broadcast music columbia broadcasting system courts predict confidence invalidated almost instances rule reason see arizona maricopa county medical come surprise expressed reluctance adopt per se rules regard restraints imposed context business relationships economic impact certain practices immediately obvious khan supra internal quotation marks omitted see also white motor refusing adopt per se rule vertical nonprice restraint uncertainty concerning whether type restraint satisfied demanding standards necessary apply per se rule stated departure standard must based upon demonstrable economic effect rather upon formalistic line drawing gte sylvania supra iii interpreted dr miles medical john park sons establishing per se rule vertical agreement manufacturer distributor set minimum resale prices see monsanto service dr miles plaintiff manufacturer medicines sold products distributors agreed resell set prices found manufacturer control resale prices unlawful relied rule general restraint upon alienation ordinarily invalid explained agreements advantage distributors manufacturer analogous combination among competing distributors law treated void reasoning recent jurisprudence rejected rationales dr miles based relying rule restraints alienation justified decision based formalistic legal doctrine rather demonstrable economic effect gte sylvania supra dr miles relied treatise published failed discuss detail business reasons motivate manufacturer situated make use vertical price restraints yet sherman act use restraint trade invokes common law merely static content common law assigned term business electronics supra general restraint alienation especially age hughes used term tended evoke policy concerns extraneous question controls usually associated land chattels rule arose restrictions removing real property stream commerce generations cautious putting dispositive weight doctrines antiquity slight relevance reaffirm state common law even years ago irrelevant issue us effect antitrust laws upon vertical distributional restraints american economy today gte sylvania internal quotation marks omitted dr miles furthermore treated vertical agreements manufacturer makes distributors analogous horizontal combination among competing distributors see later cases however rejected approach reliance rules governing horizontal restraints defining rules applicable vertical ones see business electronics supra disclaiming notion equivalence scope horizontal per se illegality vertical per se illegality maricopa county supra noting horizontal restraints generally less defensible vertical restraints recent cases formulate antitrust principles accordance appreciated differences economic effect vertical horizontal agreements differences dr miles failed consider reasons upon dr miles relied justify per se rule consequence necessary examine first instance economic effects vertical agreements fix minimum resale prices determine whether per se rule nonetheless appropriate see business electronics though side debate find sources support position suffices say economics literature replete procompetitive justifications manufacturer use resale price maintenance see brief economists amici curiae theoretical literature essentially undisputed minimum resale price maintenance procompetitive effects variety market conditions unlikely anticompetitive effects brief amicus curiae widespread consensus permitting manufacturer control price goods sold may promote interbrand competition consumer welfare variety ways aba section antitrust law antitrust law economics product distribution bulk economic literature resale price maintenance suggests likely used enhance efficiency anticompetitive purposes see also hovenkamp antitrust enterprise principle execution hereinafter hovenkamp bork antitrust paradox hereinafter bork even skeptical resale price maintenance acknowledge procompetitive effects see brief william comanor et al amici curiae iven diversity effects resale price maintenance one reasonably take position rule reason rather per se approach warranted scherer ross industrial market structure economic performance ed hereinafter scherer ross overall balance benefits costs resale price maintenance probably close recent studies documenting competitive effects resale price maintenance also cast doubt conclusion practice meets criteria per se rule see overstreet resale price maintenance economic theories empirical evidence hereinafter overstreet noting fficient uses resale price maintenance evidently unusual rare see also ippolito resale price maintenance empirical evidence litigation law econ hereinafter ippolito justifications vertical price restraints similar vertical restraints see gte sylvania minimum resale price maintenance stimulate interbrand competition competition among manufacturers selling different brands type product reducing intrabrand competition competition among retailers selling brand see promotion interbrand competition important primary purpose antitrust laws protect type competition khan single manufacturer use vertical price restraints tends eliminate intrabrand price competition turn encourages retailers invest tangible intangible services promotional efforts aid manufacturer position rival manufacturers resale price maintenance also potential give consumers options choose among brands brands brands fall absent vertical price restraints retail services enhance interbrand competition might underprovided discounting retailers free ride retailers furnish services capture increased demand services generate gte sylvania supra consumers might learn example benefits manufacturer product retailer invests fine showrooms offers product demonstrations hires trains knowledgeable employees posner antitrust law ed hereinafter posner consumers might decide buy product see retail establishment reputation selling merchandise marvel mccafferty resale price maintenance quality certification rand econ hereinafter marvel mccafferty consumer buy product retailer discounts spent capital providing services developing quality reputation retailer lose sales discounter forcing cut back services level lower consumers otherwise prefer minimum resale price maintenance alleviates problem prevents discounter undercutting service provider price competition decreased manufacturer retailers compete among services resale price maintenance addition increase interbrand competition facilitating market entry new firms brands ew manufacturers manufacturers entering new markets use restrictions order induce competent aggressive retailers make kind investment capital labor often required distribution products unknown consumer gte sylvania supra see marvel mccafferty noting reliance retailer reputation decline manufacturer brand becomes better known resale price maintenance may particularly important competitive device new entrants new products new brands essential dynamic economy markets penetrated using resale price maintenance procompetitive effect resale price maintenance also increase interbrand competition encouraging retailer services provided even absent free riding may difficult inefficient manufacturer make enforce contract retailer specifying different services retailer must perform offering retailer guaranteed margin threatening termination live expectations may efficient way expand manufacturer market share inducing retailer performance allowing use initiative experience providing valuable services see mathewson winter law economics resale price maintenance rev indus org hereinafter mathewson winter klein murphy vertical restraints contract enforcement mechanisms law econ see also deneckere marvel peck demand uncertainty inventories resale price maintenance econ noting resale price maintenance may beneficial motivate retailers stock adequate inventories manufacturer goods face uncertain consumer demand vertical agreements setting minimum resale prices procompetitive justifications may anticompetitive effects cases unlawful price fixing designed solely obtain monopoly profits ever present temptation resale price maintenance may example facilitate manufacturer cartel see business electronics unlawful cartel seek discover manufacturers undercutting cartel fixed prices resale price maintenance assist cartel identifying manufacturers benefit lower prices offer resale price maintenance furthermore discourage manufacturer cutting prices retailers concomitant benefit cheaper prices consumers see ibid see also posner overstreet vertical price restraints also might used organize cartels retailer level business electronics supra group retailers might collude fix prices consumers compel manufacturer aid unlawful arrangement resale price maintenance instance manufacturer establish practice stimulate services promote brand give inefficient retailers higher profits retailers better distribution systems lower cost structures prevented charging lower prices agreement see posner overstreet historical examples suggest possibility legitimate concern see marvel mccafferty welfare effects resale price maintenance law econ hereinafter marvel providing example power national association retail druggists compel manufacturers use resale price maintenance hovenkamp suggesting retail druggists dr miles formed cartel used manufacturers enforce horizontal cartel among competing manufacturers competing retailers decreases output reduces competition order increase price per se unlawful see texaco gte sylvania extent vertical agreement setting minimum resale prices entered upon facilitate either type cartel need held unlawful rule reason type agreement may also useful evidence plaintiff attempting prove existence horizontal cartel resale price maintenance furthermore abused powerful manufacturer retailer dominant retailer example might request resale price maintenance forestall innovation distribution decreases costs manufacturer might consider little choice accommodate retailer demands vertical price restraints manufacturer believes needs access retailer distribution network see overstreet areeda hovenkamp antitrust law ed hereinafter areeda hovenkamp cf toys us ftc manufacturer market power comparison might use resale price maintenance give retailers incentive sell products smaller rivals new entrants see marvel evident potential anticompetitive consequences vertical price restraints must ignored underestimated notwithstanding risks unlawful conduct stated degree confidence resale price maintenance always almost always tend restrict competition decrease output business electronics supra internal quotation marks omitted vertical agreements establishing minimum resale prices either procompetitive anticompetitive effects depending upon circumstances formed although empirical evidence topic limited suggest efficient uses agreements infrequent hypothetical see overstreet see also noting majority enforcement actions brought federal trade commission use resale price maintenance likely motivated collusive dealers successfully coerced suppliers ippolito reaching similar conclusion rule proscribe significant amount procompetitive conduct agreements appear ill suited per se condemnation respondent contends nonetheless vertical price restraints per se unlawful administrative convenience per se rules see gte sylvania supra noting per se rules tend provide guidance business community minimize burdens litigants judicial system argument suggests per se illegality rule rather exception misinterprets antitrust law per se rules may decrease administrative costs part equation rules counterproductive increase total cost antitrust system prohibiting procompetitive conduct antitrust laws encourage see easterbrook vertical arrangements rule reason antitrust hereinafter easterbrook also may increase litigation costs promoting frivolous suits legitimate practices thus explained administrative advantages sufficient justify creation per se rules gte sylvania relegated use restraints manifestly anticompetitive conclude vertical price restraints per se illegal based administrative costs undermine overrule traditional demanding standards adopting per se rules possible reduction administrative costs alone justify dr miles rule respondent also argues per se rule justified vertical price restraint lead higher prices manufacturer goods see also overstreet noting price surveys indicate resale price maintenance cases increased prices products sold respondent mistaken relying pricing effects absent showing anticompetitive conduct cf explaining price surveys necessarily tell us anything conclusive welfare effects resale price maintenance results generally consistent procompetitive anticompetitive theories indicated already antitrust laws designed primarily protect interbrand competition lower prices later result see khan moreover evaluated vertical restraints rule reason even though prices increased course promoting procompetitive effects see business electronics resale price maintenance may reduce prices manufacturers resorted costlier alternatives controlling resale prices per se unlawful see infra see also marvel respondent argument furthermore overlooks general interests manufacturers consumers aligned respect retailer profit margins difference price manufacturer charges retailers price retailers charge consumers represents part manufacturer cost distribution like cost manufacturer usually desires minimize see gte sylvania see also economists argued manufacturers economic interest maintaining much intrabrand competition consistent efficient distribution products manufacturer incentive overcompensate retailers unjustified margins retailers manufacturer gain higher retail prices manufacturer often loses interbrand competition reduces competitiveness market share consumers substitute different brand product see business electronics supra general matter therefore single manufacturer desire set minimum resale prices increase demand resulting enhanced service offset negative impact demand higher retail price mathewson winter implications respondent position far reaching many decisions manufacturer makes carries concerted action lead higher prices manufacturer might example contract different suppliers obtain better inputs improve product quality might hire advertising agency promote awareness goods yet one think actions violate sherman act lead higher prices antitrust laws require manufacturers produce generic goods consumers know want manufacturer strives improve product quality promote brand believes conduct lead increased demand despite higher prices hold true resale price maintenance resale price maintenance true economic dangers rule reason apply vertical price restraints courts diligent eliminating anticompetitive uses market realistic objective certain factors relevant inquiry example number manufacturers make use practice given industry provide important instruction manufacturers lacking market power adopt practice little likelihood facilitating manufacturer cartel cartel undercut rival manufacturers see overstreet bork likewise retailer cartel unlikely single manufacturer competitive market uses resale price maintenance interbrand competition divert consumers lower priced substitutes eliminate gains retailers agreement single brand see posner bork resale price maintenance subject careful scrutiny contrast many competing manufacturers adopt practice cf scherer ross noting except resale price maintenance spreads cover bulk industry output depriving consumers meaningful choice outlets resale price maintenance arrangements probably innocuous easterbrook suggesting every one outcomes vertical arrangements depends uniformity practice source restraint may also important consideration evidence retailers impetus vertical price restraint greater likelihood restraint facilitates retailer cartel supports dominant inefficient retailer see brief william comanor et al amici curiae contrast manufacturer adopted policy independent retailer pressure restraint less likely promote anticompetitive conduct cf posner makes difference whether minimum retail prices imposed manufacturer order evoke services dealers order obtain monopoly profits manufacturer also incentive protest inefficient price restraints harm competitive position final matter dominant manufacturer retailer abuse resale price maintenance anticompetitive purposes may serious concern unless relevant entity market power retailer lacks market power manufacturers likely sell goods rival retailers see also business electronics supra noting etail market power rare usual presence interbrand competition dealers manufacturer lacks market power less likelihood use practice keep competitors away distribution outlets rule reason designed used eliminate anticompetitive transactions market standard principle applies vertical price restraints party alleging injury vertical agreement setting minimum resale prices general matter information resources available show existence agreement scope operation courts gain experience considering effects restraints applying rule reason course decisions establish litigation structure ensure rule operates eliminate anticompetitive restraints market provide guidance businesses courts example devise rules time offering proof even presumptions justified make rule reason fair efficient way prohibit anticompetitive restraints promote procompetitive ones foregoing reasons think considering issue original matter rule reason per se rule unlawfulness appropriate standard judge vertical price restraints iv write clean slate decision dr miles almost century old argument retention basis stare decisis alone even dr miles established erroneous rule tare decisis reflects policy judgment matters important applicable rule law settled settled right khan internal quotation marks omitted concerns maintaining settled law strong question one statutory interpretation see hohn stare decisis significant case however issue us scope sherman act khan supra general presumption legislative changes left congress less force respect sherman act beginning treated sherman act statute see national soc professional engineers see also northwest airlines transport workers antitrust federal courts act courts areas governed federal statute common law adapts modern understanding greater experience sherman act prohibition restraint trade evolve meet dynamics present economic conditions adjudication contemplated rule reason implemented approach see national soc professional engineers supra likewise boundaries doctrine per se illegality immovable make sense create single term trade chronologically schizoid statute reason evolves new circumstance new wisdom line per se illegality remains forever fixed business electronics stare decisis conclude compel continued adherence per se rule vertical price restraints discussed earlier respected authorities economics literature suggest per se rule inappropriate widespread agreement resale price maintenance procompetitive effects see brief economists amici curiae also significant department justice federal trade commission antitrust enforcement agencies ability assess impacts resale price maintenance recommended replace per se rule traditional rule reason see brief amicus curiae antitrust context fact decision called serious question justifies reevaluation khan supra considerations reinforce conclusion dr miles overturned relevance overruled precedents subsequent cases undermined doctrinal underpinnings dickerson treatment vertical restraints progressed away dr miles strict approach distanced opinion rationales see supra see also khan supra overruling case views underlying eroded precedent rodriguez de quijas express unsurprising case decided long enactment sherman act little experience antitrust analysis eight years dr miles moreover reined decision holding manufacturer announce suggested resale prices refuse deal distributors follow colgate recent cases following approach continued temper limit overrule strict prohibitions vertical restraints overturned per se rule vertical nonprice restraints adopting rule reason stead gte sylvania overruling arnold schwinn see also noting advantages vertical restrictions limited categories new entrants failing firms gte sylvania suggested differences vertical price nonprice restraints support different legal treatment see central part opinion relied authorities arguments find unequal treatment difficult justify white concurring judgment continuing direction two cases defined legal rules limit reach dr miles accommodate doctrines enunciated gte sylvania colgate see business electronics supra monsanto monsanto required antitrust plaintiffs alleging conspiracy must present evidence tending exclude possibility manufacturer distributors acted independent manner unlike justice brennan concurrence rejected arguments dr miles overruled see decline reach question whether vertical agreements fixing resale prices always unlawful neither party suggested otherwise business electronics narrowed scope dr miles held per se rule applied specific agreements price levels agreement manufacturer distributor terminate distributor recently examining issue vertical maximum agreements light commentary real experience overruled precedent treating agreements per se illegal khan overruling albrecht herald held instead evaluated traditional rule reason continued limiting reach decision dr miles recent treatment vertical restraints justify conclusion dr miles retained dr miles rule also inconsistent principled framework makes little economic sense analyzed cases vertical restraints decide procompetitive effects resale price maintenance insufficient overrule dr miles cases colgate gte sylvania called question later decisions may result less intrabrand competition justified permit manufacturers secure procompetitive benefits associated vertical price restraints methods methods however less efficient particular manufacturer establish sustain end result hinders competition consumer welfare manufacturers forced engage alternatives consumers required shoulder increased expense inferior practices manufacturer number legitimate options achieve benefits similar provided vertical price restraints manufacturer exercise colgate right refuse deal retailers follow suggested prices see economic effects unilateral concerted price setting general see monsanto problem manufacturer jury might conclude unilateral policy really vertical agreement subjecting treble damages potential criminal liability ibid business electronics supra even stringent standards monsanto business electronics danger lead led rational manufacturers take wasteful measures see brief ping amicus curiae manufacturer might refuse discuss pricing policy distributors except counsel knowledgeable subtle intricacies law might terminate longstanding distributors minor violations without seeking explanation see ibid increased costs burdensome measures generate flow consumers form higher prices furthermore depending type product sells manufacturer might able achieve procompetitive benefits resale price maintenance integrating downstream selling products directly consumers dr miles tilts relative costs vertical integration vertical agreement making former attractive based per se rule real market conditions see business electronics supra see generally coase nature firm economica new series distortion might lead inefficient integration otherwise take place consumers must suffer consequences suboptimal distribution strategy integration unlike vertical price restraints eliminates intrabrand competition see gte sylvania yet another consideration manufacturer impose territorial restrictions distributors allow one distributor sell goods given region cases recognized economics literature confirms vertical nonprice restraints impacts similar vertical price restraints reduce intrabrand competition stimulate retailer services see business electronics supra monsanto supra see also brief economists amici curiae cf scherer ross noting vertical nonprice restraints engender inefficiencies least serious imposed upon consumer resale price maintenance steiner manufacturers deal retailer vertical restraints efficient antitrust indicating antitrust law recognize consumer interest often better served resale price maintenance contrary per se illegality status vertical nonprice restraints legal standard per se unlawfulness applies horizontal market division horizontal price fixing similar economic effect likewise little economic justification current differential treatment vertical price nonprice restraints furthermore vertical nonprice restraints may prove less efficient inducing desired services reduce intrabrand competition vertical price restraints eliminating price service competition see brief economists amici curiae sum flawed antitrust doctrine serves interests lawyers creating legal distinctions operate traps unwary interests consumers requiring manufacturers choose options achieve sound business objectives respondent arguments reaffirming dr miles basis stare decisis require different result respondent looks congressional action concerning vertical price restraints congress passed fair trade act stat made vertical price restraints legal authorized fair trade law enacted state fifteen years later congress expanded exemption permit vertical agreements manufacturer distributor enforced distributors involved agreement mcguire act stat however congress repealed acts consumer goods pricing act stat dr miles rule applied vertical price restraints according respondent shows congress ratified rule text consumer goods pricing act codify rule per se illegality vertical price restraints rescinded statutory provisions made per se legal congress placed restraints within ambit sherman act discussed congress intended give courts ability develop governing principles law tradition texas industries radcliff materials see business electronics changing content term trade well recognized time sherman act enacted congress set dr miles rule stone chose flexible option respect decision analyzing vertical price restraints like restraints conformance traditional principles including principle antitrust doctrines evolv new circumstances new wisdom business electronics supra see also easterbrook rule reason furthermore inconsistent consumer goods pricing act unlike earlier congressional exemption treat vertical price restraints per se legal respect justifications prior exemption illuminating goal allow protect small retail establishments congress thought might otherwise driven marketplace discounters california retail liquor dealers assn midcal aluminum state fair trade laws also appear justified similar grounds see areeda hovenkamp rationales provisions foreign sherman act divorced competition consumer welfare designed save inefficient small retailers inability compete purpose antitrust laws contrast protection competition competitors atlantic richfield usa petroleum internal quotation marks omitted extent congress repealed exemption vertical price restraints end prior practice encouraging anticompetitive conduct rule reason promotes objective respondent also relies several congressional appropriations congress permit department justice federal trade commission use funds advocate overturning dr miles see stat need pause long addressing argument conditions funding longer place see brief amicus curiae ambiguous best much might show congressional approval dr miles might demonstrate different proposition congress pass legislation codifying rule reached compromise instead reliance interests require us reaffirm dr miles sure reliance judicial opinion significant reason adhere payne tennessee especially cases involving property contract rights khan reliance interests however like reliance interests khan justify inefficient rule especially narrowness rule allowed manufacturers set minimum resale prices ways dr miles rule longstanding resale price maintenance legal fair trade laws majority large part past century also note time legal environment favorable resale price maintenance tiny fraction manufacturers ever employed resale price maintenance contracts overstreet see also noting one percent manufacturers accounting ten percent consumer goods purchases ever employed resale price maintenance single year scherer ross noting fraction retail sales covered resale price maintenance heyday variously estimated percent extent consumers demand cheap goods judging vertical price restraints rule reason prevent market providing cf easterbrook noting kresge old flourished days manufacturers greatest freedom discount stores offer combination price service many customers value othing restricted dealing threatens ability consumers find low prices scherer ross noting part effects consumer goods pricing act imperceptible forces competition already repealed previous antitrust exemption quiet way reasons decision dr miles medical john park sons overruled vertical price restraints judged according rule reason noting leegin president ownership interest retail stores sell brighton respondent claims leegin participated unlawful horizontal cartel competing retailers respondent make allegation lower courts consider judgment appeals reversed case remanded proceedings consistent opinion ordered leegin creative leather products petitioner psks dba kay kloset kay shoes writ certiorari appeals fifth circuit june justice breyer justice stevens justice souter justice ginsburg join dissenting dr miles medical john park sons held agreement manufacturer proprietary medicines dealers fix minimum price medicines sold invalid sherman act consistently read dr miles establishing rule agreements fixing minimum resale prices per se illegal see trenton potteries nynex discon per se rule one upon legal profession business public relied close century today holds courts must determine lawfulness minimum resale price maintenance applying per se rule rule reason ante overturns dr miles justifies departure ordinary considerations stare decisis pointing set arguments well known antitrust literature close half century see ante congress repeatedly found arguments insufficient grounds overturning per se rule see hearings et al subcommittee commerce finance house committee interstate foreign commerce view warrant overturning legal precedent sherman act seeks maintain marketplace free anticompetitive practices particular enforced agreement among private firms law assumes marketplace free private restrictions tend bring lower prices better products efficient production processes consumers typically desire determining lawfulness particular practices courts often apply rule reason examine practice likely anticompetitive effects beneficial business justifications see national collegiate athletic assn board regents univ national soc professional engineers board trade chicago nonetheless sometimes likely anticompetitive consequences particular practice serious potential justifications difficult prove courts departed pure rule reason approach sometimes imposed rule per se unlawfulness rule instructs courts find practice unlawful nearly time see nynex supra arizona maricopa county medical continental gte sylvania topco associates oil citing quoting trenton potteries supra case us asks kind approach courts follow minimum resale price maintenance issue apply per se rule variation make minimum resale price maintenance always almost always unlawful apply rule reason writing blank slate find questions difficult course writing blank slate fact makes considerable legal difference best explain question difficult deciding afresh briefly summarize several classical arguments use per se rule arguments focus three sets considerations involving potential anticompetitive effects potential benefits administration difficulty arises fact different sets considerations point different directions see areeda antitrust law pp ed hereinafter areeda areeda hovenkamp antitrust law pp ed hereinafter areeda hovenkamp easterbrook vertical arrangements rule reason antitrust hereinafter easterbrook pitofsky defense discounters case per se rule vertical price fixing geo hereinafter pitofsky scherer economics vertical restraints antitrust hereinafter scherer posner next step antitrust treatment restricted distribution per se legality chi rev brief william comanor frederic scherer amici curiae one hand agreements setting minimum resale prices may serious anticompetitive consequences respect dealers resale price maintenance agreements rather like horizontal price agreements diminish eliminate price competition among dealers single brand practiced generally manufacturers among multibrand dealers prevent dealers offering customers lower prices many customers prefer prevent dealers responding changes demand say falling demand cutting prices encourage dealers substitute service price competition thereby threatening wastefully attract many resources portion industry inhibit expansion efficient dealers whose lower prices might otherwise attract customers stifling development new efficient modes retailing forth see areeda hovenkamp steiner evolution applications thinking antitrust bulletin comanor vertical vertical market restrictions new antitrust policy harv rev respect producers resale price maintenance agreements help reinforce behavior firms concentrated industries industries firms may tacitly collude observe pricing behavior understanding price cutting one firm likely trigger price competition see areeda hovenkamp areeda kaplow antitrust analysis pp ed hereinafter areeda kaplow cf container america areeda kaplow resale price maintenance make easier producer identify observing retail markets competitor begun cut prices producer cuts wholesale prices without lowering minimum resale price stand gain little anything increased profits dealer unable stimulate increased consumer demand passing along producer price cut consumers either case resale price maintenance agreements tend prevent price competition breaking thereby tend stabilize producer prices see pitofsky container supra express concern potential anticompetitive effects find empirical support behavior prices congress repealed fair trade act stat mcguire act stat acts permitted required individual enact fair trade laws authorizing minimum resale price maintenance time repeal minimum resale price maintenance lawful unlawful see hearings subcommittee antitrust monopoly senate committee judiciary hereinafter hearings statement thomas kauper assistant attorney general antitrust division comparing prices former prices latter department justice argued minimum resale price maintenance raised prices see hearings subcommittee monopolies commercial law house committee judiciary hereinafter hearings statement keith clearwaters deputy assistant attorney general antitrust division repeal minimum resale price maintenance agreements unlawful per se every state federal trade commission ftc staff studying numerous price surveys wrote collectively surveys indicate resale price maintenance cases increased prices products sold resale price maintenance bureau economics staff report ftc overstreet resale price maintenance economic theories empirical evidence hereinafter overstreet economists today agree words prominent antitrust treatise resale price maintenance tends produce higher consumer prices otherwise case areeda hovenkamp finding evidence persuasive point see also brief william comanor frederic scherer amici curiae uniformly acknowledged resale price maintenance vertical restraints lead higher consumer prices hand favoring resale price maintenance long argued resale price maintenance agreements provide important consumer benefits majority lists two first agreements facilitate new entry ante example newly entering producer wishing build product name might able convince dealers help producer assure dealers later recoup investment without resale price maintenance dealers might take advantage earlier investment price competition drive prices point early dealers recover spent assuring initial dealers later price competition occur resale price maintenance encourage carry new product thereby helping new producer succeed see areeda hovenkamp result might increased competition producer level greater competition brings net consumer benefits second without resale price maintenance producer might find efforts sell product undermined resale price maintenance advocates call free riding ante suppose producer concludes succeed dealers provide certain services say product demonstrations high quality shops advertising creates certain product image forth without resale price maintenance dealers might take free ride investment others make providing services dealer save money paying services consequently cut price increase sales circumstances dealers might prove unwilling invest provision necessary services see areeda hovenkamp posner antitrust law ed bork antitrust paradox hereinafter bork easterbrook moreover producer group dealers seeks resale price maintenance agreement special reason believe benefits exist things equal producers want encourage price competition among dealers often increase profits selling product see sylvania bork even producer possesses sufficient market power earn profit say things equal producer benefit charging dealers competitive even wholesale price encouraging price competition among hence producer moving force producer must special reason wanting resale price maintenance absence say concentrated producer markets special reason might consist desire stabilize wholesale prices special reason may well reflect special circumstances described new entry free riding variations themes upshot many economists suggest sometimes resale price maintenance prove harmful sometimes bring benefits see brief economists amici curiae areeda hovenkamp pitofsky scherer concluding courts consequently apply rule reason ask questions often harms benefits likely occur easy separate beneficial sheep antitrust goats economic discussion studies relies upon help provide answers questions economics inform antitrust law antitrust law precisely replicate economists sometimes conflicting views law unlike economics administrative system effects depend upon content rules precedents applied judges juries courts lawyers advising clients fact means courts often bring administrative judgment bear sometimes applying rules per se unlawfulness business practices even practices sometimes produce benefits see scherer ross industrial market structure economic performance ed hereinafter scherer ross describing circumstances agreements beneficial unfettered competition also noting potential costs moving per se ban rule reasonableness assessment agreements already described studies analyses suggest though prove resale price maintenance cause harms regularity certainly dealers driving force benefits often example benefits points occur practice find economic consensus point consensus literature free riding takes place free riding often takes place economy without legal effort stop many visitors california take free rides pacific coast highway benefit freely ideas creating first supermarket dealers often take free ride investments others made building product name reputation question often free riding problem serious enough significantly deter dealer investment specific one easily imagine dealer refuses provide important presale services say detailed explanation product works fails provide proper atmosphere sell expensive perfume alligator billfolds lest customers use free service enjoy psychological benefit arising retailer stocks particular brand billfold handbag buy another dealer lower price sometimes must happen reality happen often live economy firms despite dr miles per se rule still sell complex technical equipment well expensive perfume alligator billfolds consumers say ultimate question whether much free riding sort takes place reading briefs must answer question uncertain sometimes see brief william comanor frederic scherer amici curiae noting skepticism economic literature often free riding actually occurs scherer ross explaining severe limitations justification resale price maintenance pitofsky dr miles right regulation pp similar analysis easily courts identify instances benefits likely outweigh potential harms answer easily one thing often difficult identify producer dealer moving force behind given resale price maintenance agreement suppose example several large multibrand retailers sell products suppose small producers set retail prices fear otherwise large retailers favor say allocating better goods producers practice resale price maintenance initiated practice retailers hoping considerable insulation retail competition producers simply seek deal best circumstances find another thing said difficult determine free riding problem serious enough warrant legal protection recognize scholars sought develop check lists sets questions help courts separate instances anticompetitive harms likely instances benefits likely found see areeda hovenkamp see also brief william comanor frederic scherer amici curiae applying criteria often easier said done invitation consider existence market power example ante invites lengthy argument among competing experts seek apply abstract highly technical criteria often markets resale price maintenance cases unlike major merger monopoly case likely prove numerous involve private parties one fairly expect judges juries cases apply complex economic criteria without making considerable number mistakes may impose serious costs see hovenkamp antitrust enterprise litigating rule reason case one costly procedures antitrust practice see also bok section clayton act merging law economics harv rev describing lengthy ftc efforts apply complex criteria merger case special advantages rule without rule often unfair consequently impractical enforcement officials bring criminal proceedings since enforcement resources limited loss may tempt producers dealers enter agreements balance anticompetitive given uncertainties surround key items overall balance sheet particularly respect administrative questions concede majority problem difficult forced decide might agree per se rule slightly modified allow exception easily identifiable temporary condition new entry see pitofsky forced decide question question us rule starting scratch must decide whether change clear simple antitrust rule courts applied nearly century ii write blank slate slate begins dr miles goes list century worth similar cases massive amounts advice lawyers provided clients untold numbers business decisions clients taken reliance upon advice see bausch lomb optical sylvania per se illegality vertical price restrictions established firmly many years indeed westlaw search shows dr miles cited dozens times hundreds times lower courts wish change legal precedent bear heavy burden proof see illinois brick illinois noting declining overrule earlier case interpreting clayton act considerations stare decisis weigh heavily area statutory construction congress free change interpretation legislation aware case overturned statutory precedent regardless see claim ordinary criteria earlier case met see planned parenthood southeastern casey see also federal election wisconsin right life ante scalia concurring part concurring judgment find change circumstances past several decades helps majority position fact one important change argues strongly contrary congress repealed mcguire acts see consumer goods pricing act stat thereby consciously extended dr miles per se rule indeed time department justice ftc urging application per se rule discussed virtually every argument presented well others presented explained congress congress reject see hearings statement thomas kauper assistant attorney general antitrust division testimony lewis engman chairman ftc hearings testimony keith clearwaters deputy assistant attorney general antitrust division congress fully understood consequently intended result repeal mcguire make minimum resale price maintenance per se unlawful see pp without exemptions authorized mcguire acts agreements authorize violate antitrust laws epeal fair trade laws generally prohibit manufacturers enforcing resale prices see also sylvania supra congress recently expressed approval per se analysis vertical price restrictions repealing provisions mcguire acts allowing pricing option individual congress prohibit reconsidering per se rule enacting major legislation premised upon existence rule constitutes important public reliance upon rule aware relevant arguments constitutes even stronger reliance upon keeping rule least absence significant change respect arguments changes economic studies described briefs argue contrary testimony justice department ftc congress resale price maintenance harmful one study relying analysis litigated resale price maintenance cases concludes resale price maintenance ordinarily involve producer dealer collusion see ippolito resale price maintenance empirical evidence litigation law econ study equates failure plaintiffs allege collusion absence collusion equation overlooks superfluous nature allegations horizontal collusion resale price maintenance case tacit form collusion might take see hovenkamp federal antitrust policy ed supra study provides theoretical basis concluding resale price maintenance need lead higher retail prices marvel mccafferty political economy resale price maintenance pol econ study develops theoretical model assumption resale price maintenance ibid empirical support study authors acknowledge much criticized see many economists take different view see brief william comanor frederic scherer amici curiae regardless taken together studies may offer mild support majority position constitute major change circumstances petitioner amici also presented us newer studies show resale price maintenance sometimes brings consumer benefits overstreet describing numerous case studies proponents per se rule always conceded much remarkable majority arguments nothing respect new see supra citing articles congressional testimony going back several decades new feature arguments lies fact current advocates overruling dr miles abandoned host arguments upon prior resale price maintenance proponents used rely see areeda listing raditional justifications resale price maintenance one arguable exception consists majority claim even absent free riding resale price maintenance may efficient way expand manufacturer market share inducing retailer performance allowing use initiative experience providing valuable services ante count exception however understand absence assuming competitiveness established producer need resale price maintenance assumptions dealer expand market share best dealer sees fit obtaining appropriate payment consumers process may answer question seen think place significant weight upon justifications parties explain sufficient clarity generalist judge understand one claims american economy changed ways might support majority concentration retailing increased see brief respondent since minimum resale price maintenance banned nationwide total number retailers dropped growth sales per store risen brief american antitrust institute amicus curiae citing private study reporting combined sales largest retailers worldwide grown nearly total retail sales top retailers also quoting organisation economic development report stating twenty years seen momentous changes retail distribution including significant increases mamen facing goliath challenging impacts supermarket consolidation local economies communities food security oakland institute policy brief pp spring http visited june available clerks case file noting many decades top five food retail firms controlled less percent market top five firms increased market share percent retail sales controlled half grocery sales change things equal may enable motivate retailers accounting greater percentage total retail sales volume seek resale price maintenance thereby making difficult competitors perhaps internet retailers obtain market share anyone argued concentration among manufacturers might use resale price maintenance diminished significantly far tell consider household electrical appliances study late suggests constituted significant portion products subject resale price maintenance time see hollander america resale price maintenance yamey ed although somewhat difficult compare census data several decades ago changes classification system clear least subsets household electrical appliance industry concentrated terms manufacturer market power instance top eight domestic manufacturers household cooking appliances accounted domestic market measured value shipments earliest date able find data compared see dept commerce bureau census census manufacturers special report series concentration ratios manufacturing sr hereinafter census dept commerce bureau census economic census concentration ratios hereinafter census top eight domestic manufacturers household laundry equipment accounted domestic market compared census census top eight domestic manufacturers household refrigerators freezers accounted domestic market compared census census increased concentration among manufacturers increases likelihood resale price maintenance prove prevalent today years past harmful least majority explained changes economy help support position sum relevant change without change ground abandoning antitrust rule preceding discussion mind consult list factors case law indicates relevant consider overruling earlier case justice scalia writing separately another cases term well summarizes law see wisconsin right life ante opinion concurring part concurring judgment every relevant factor mentions argues overruling dr miles first applies stare decisis rigidly statutory constitutional cases see glidden zdanok illinois brick statutory case second sometimes overrule cases decided wrongly reasonably short time ago justice scalia put verruling constitutional case decided years earlier far unprecedented wisconsin right life ante emphasis added overrule one statutory case dr miles decided years ago overrule cases reaffirmed per se rule intervening years see trenton potteries bausch lomb parke davis simpson union oil third fact decision creates unworkable legal regime argues favor overruling see payne tennessee swift wickham implementation per se rule even complications attendant exception allowed colgate proved practical course last century particularly compared many complexities litigating case rule reason regime one shown moving dr miles regime rule reason analysis make legal regime governing minimum resale price maintenance administrable wisconsin right life ante opinion scalia particularly since colgate remain good law respect unreasonable price maintenance fourth fact decision unsettles law may argue favor overruling see sylvania wisconsin right life ante opinion scalia per se rule law previously recognized sylvania supra majority change unsettle law fifth fact case involves property rights contract rights reliance interests involved argues overruling payne supra case involves contract rights perhaps property rights consider shopping malls considerable reliance upon per se rule said congress relied upon continued vitality dr miles repealed mcguire supra executive branch argued repeal assumption dr miles stated law ibid moreover whole sectors economy come rely upon per se rule factory outlet store tells us rule form essential part regulatory background firm many discount retailers financed structured operated businesses brief burlington coat factory warehouse amicus curiae consumer federation america tells us large retailers exist without dr miles minimum resale price maintenance stabilizing price levels preventing competition erects potentially insurmountable barrier entry innovators brief consumer federation america amicus curiae discussing inter alia comments founder years ago relaxation per se ban minimum resale price maintenance business see also brief american antitrust institute amicus curiae sources cited therein making point new distributors including internet distributors similarly invested time money labor effort bring yet lower cost goods americans overruling per se rule jeopardizes reliance malls built assumption discount distributor remain anchor tenant home buyers taken home distance mall account americans producers distributors consumers understandably assumed least last years price competition legally guaranteed way life majority denies none simply says reliance interests like reliance interests khan justify inefficient rule ante minimizes importance reliance adding also note time resale price maintenance contracts lawful tiny fraction manufacturers ever practice ibid quoting overstreet tiny means manufacturers accounted percent consumer goods annually figure today economy equals billion see dept commerce bureau census statistical abstract ed trillion retail sales putting estimate together justice department early study translates legal regime permits resale price maintenance retail bills higher average roughly annually american family four much higher retail bills decision today course depends upon unknown namely courts decide future cases rule reason figures indicate amounts involved important american families dismissed tiny sixth fact rule law become embedded national culture argues strongly overruling dickerson per se rule forbidding minimum resale price maintenance agreements long embedded law antitrust involves price economy nervous system national soc professional engineers quoting oil reflects basic antitrust assumption consumers often prefer lower prices service embodies basic antitrust objective providing consumers free choice matters creates easily administered enforceable bright line agree price businesses well lawyers long understood contrary stare decisis factor majority mentions consists claim rom beginning treated sherman act statute previously overruled antitrust precedent ante points support state oil khan overruling albrecht herald held maximum resale price agreements unlawful per se sylvania overruling arnold schwinn held territorial limits unlawful per se decided khan however years albrecht still significant period nowhere close century dr miles stood specifically noted lack significant reliance upon albrecht albrecht little relevance ongoing enforcement sherman act albrecht far less support traditional antitrust principles dr miles compare areeda hovenkamp analyzing potential harms minimum resale price maintenance analyzing potential harms maximum resale price maintenance see also pitofsky congress nowhere expressed support albrecht rule khan supra sylvania overruling schwinn explicitly distinguished dr miles ground congress recently expressed approval per se analysis vertical price restrictions repealing mcguire acts similar expression congressional intent exists nonprice restrictions moreover decided sylvania decade schwinn based overruling generally perceived need avoid confusion law factor totally absent suggests following tradition ante common law permitted overruling dr miles circumstances courts rarely overruled earlier rules outright rather time issue decisions gradually eroded scope effect rule question might eventually lead courts put rule rest one argue modifying per se rule make exception say new entry see pitofsky prove consistent approach swallow precedent potentially affecting many billions dollars sales reader compare today decision justice cardozo decision allegheny college national chautauqua cty bank jamestown note gradualism characterize today decision moreover rests decision upon economists views economic merits also take account legal scholars views overruling professors hart sacks list factors similar mentioned support judicial adherence prior holdings support adherence dr miles see hart sacks legal process eskridge frickey eds karl llewellyn written judge conscious reshaping prior law must move hold degree movement degree need truly presses bramble bush pressing need notes ftc argues favor rule reason see ante congress ftc unlike courts gather empirical evidence outside context single case neither done conclude confidence gains eliminating per se rule outweigh costs sum every stare decisis concern ever mentioned counsels overruling difficult understand one believe satisfying set stare decisis concerns justifies recent constitutional decision wisconsin right life ante scalia joined kennedy thomas concurring part concurring judgment failing satisfy concerns nonetheless permits overruling longstanding statutory decision either concerns relevant safe predictions make today decision likely raise price goods retail create considerable legal turbulence lower courts seek develop workable principles believe majority shown new changed conditions sufficient warrant overruling decision long standing ordinary stare decisis considerations indicate contrary reasons respect dissent