In Apple v Pepper, SCOTUS leaves home without its Amex

It might surprise some readers to learn that we think the Court’s decision today in Apple v. Pepper reaches — superficially — the correct result. But, we hasten to add, the Court’s reasoning (and, for that matter, the dissent’s) is completely wrongheaded. It would be an understatement to say that the Court reached the right result for the wrong reason; in fact, the Court’s analysis wasn’t even in the same universe as the correct reasoning. Below we lay out our assessment, in a post drawn from an article forthcoming in the Nebraska Law Review. Did the Court forget that, just last year, it decided Amex, the most significant U.S. antitrust case in ages? What is most remarkable about the decision (and the dissent) is that neither mentions Ohio v. Amex, nor even the two-sided market context in which the transactions at issue take place. If the decision in Apple v. Pepper hewed to the precedent established by Ohio v. Amex it would start with…

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