Thomas Jefferson and Tropical Dermatology

Spilled Ink or Economic Progress? The Supreme Court's Decision in Illinois Tool Works v. Independent Ink

“…80 However, the majority in Jefferson Parish cited respect for precedent in refusing to do so, holding that "It is far too late in the history of our antitrust jurisprudence to question the proposition that certain tying arrangement pose an unacceptable risk of stifling competition and therefore are unreasonable 'per se.'" 81 Clearly, the Court's historical review of tying in Illinois Tool Works v. Independent Ink is inconsistent with such a proposition. Moreover, given the Court's recent demonstrated willingness to eliminate longstanding per se antitrust rules, 82 and given that Court chose to eliminate a special per se rule applicable to patent ties in this case, the Court's failure to eliminate the outdated and unsupported per se categorization of tying also represents a missed opportunity.…”

Tying: A Transatlantic Perspective

“…In Jefferson Parish, Justice O'Connor was joined by three other justices in a concurring opinion that argued for the abandonment of the per se approach in favour of the rule of reason, but the majority decided to remain with the per se rule for reasons of stare decisis: 'It is far too late in the history of our antitrust jurisprudence to question the proposition that certain tying arrangements pose an unacceptable risk of stifling competition and therefore are unreasonable per se.' 12 Surely, had Robert Bork written The Antitrust Paradox after Jefferson Parish was decided, he would have used this statement as an example of just the sort of majesticallyimpervious-to-any-critical-analysis rationale for a per se approach to tying that he condemned in the passage from his book quoted above.…”

“…Only when there is very little loss to society from banning a restraint altogether is an inquiry into its costs in the individual case considered to be unnecessary. 22 From this perspective, tying does not lend itself to a per se analysis. As discussed above, while the debate on the economics of tying continues, economists seem to be in agreement on one point: tying is not anticompetitive in the majority of cases.…”

“…In her concurring opinion in Jefferson Parish, Justice O'Connor found that even such a modified per se approach was flawed: 'tying doctrine incurs the costs of the rule-of-reason approach without achieving its benefits: the doctrine calls for the extensive and timeconsuming economic analysis characteristic of the rule of reason, but then may be interpreted to prohibit arrangements that economic analysis would show to be beneficial'. 24 Although the modified per se test applied in tying cases may entail many of the costs associated with the rule of reason, Justice O'Connor's suggestion that it does not achieve any of the benefits would not seem to be entirely accurate. To the extent that it allows the courts to consider some of the possible justifications for the tying, such as the efficiencies for which the two-products test serves as a proxy, the modified per se test achieves at least some of the benefits of the rule of reason.…”

Isolationism: Failed Political Policy and Unnecessary Dermatologic Concept

“…American medicine, and even dermatology, has often looked askew at any discipline smacking of the tropics. Physicians have argued that tropical medicine is not germane to a North American country, yet Thomas Jefferson wrote from Monticello about the treatment of a number of so‐called tropical diseases 1 . Yellow fever proved to be a catastrophic epidemic in Philadelphia in the 1790s, as it did in New Orleans several times in the 19th century 2…”