546US1
Unit: $U15
[08-22-08 15:43:12] PAGES PGT: OPIN
Cite as: 546 U. S. 164 (2006)
187
Stevens, J., dissenting
the Court gives short shrift to the Robinson-Patman Act’s prophylactic intent. See 15 U. S. C. § 13(a) (barring price discrimination where “the effect of such discrimination may be substantially to lessen competition” (emphasis added)); see also, e. g., Morton Salt, 334 U. S., at 46. The Court appears to hold that, absent head-to-head bid ding with a favored dealer, a dealer in a competitive bidding market can suffer no competitive injury.4 It is unclear whether that holding is limited to franchised dealers who do not maintain inventories, or excludes virtually all franchisees from the effective protection of the Act. In either event, it is not faithful to the statutory text. III As the Court recognizes, the Robinson-Patman Act was primarily intended to protect small retailers from the vig orous competition afforded by chainstores and other large volume purchasers. Whether that statutory mission repre sented sound economic policy is not merely the subject of serious debate, but may well merit Judge Bork’s character ization as “wholly mistaken economic theory.” 5 I do not suggest that disagreement with the policy of the Act has played a conscious role in my colleagues’ unprecedented deci sion today. I cannot avoid, however, identifying the irony in a decision refusing to adhere to the text of the Act in a case in which the jury credited evidence that discriminatory 4
Indeed, if Volvo’s argument about the meaning of “purchaser,” see ante, at 179–180, ultimately meets with this Court’s approval, then the Robinson-Patman Act will simply not apply in the special-order context. Any time a special-order dealer fails to complete a transaction because the high price drives away its ultimate customer, there will be no RobinsonPatman violation because the dealer will not meet the “purchaser” re quirement, and any time the dealer completes the transaction but at a discriminatorily high price, there will be no violation because the dealer has no “competition” (as the majority sees it) for that specific transaction at the moment of purchase. 5 R. Bork, The Antitrust Paradox 382 (1978).
