AB-2010-55-2-06, Rethinking antitrust policy toward RPM

Resale price maintenance is a particularly dangerous vertical intrabrand
restraint. Because of its direct impact on price competition, it
is likely to harm consumers in a substantial number of cases. At the
same time, RPM is likely to benefit consumers in a significant number
of other cases. Given these mixed effects, the ideal legal standard
would distinguish between those instances in which RPM is anticompetitive
and those in which it is procompetitive. While Leegin thought
that the full rule of reason could play this role, it did not acknowledge
what every scholar who has looked at the issue has found—that
the full rule of reason has operated in practice as a standard of virtual
per se legality, absolving almost every restraint examined. This article
proposes an alternative approach—a presumption of illegality combined
with safe harbors—and explains why it is likely to produce
better results at lower cost.