法律翻译｜美国反垄断法经典案例：国家石油公司诉可汗案

译者 | 孙书朋 西南政法大学 国际法学硕士

审稿 | 张庆 复旦大学法律硕士

   LYJ 新加坡国立大学LL.M.

编辑 | 李建云 湖南师范大学本科

责编 | 王有蓉 西安外国语大学本科

前言

本案是美国反垄断法领域的经典案例。该案分析了本身违法原则和合理原则这两个反垄断法领域最重要的原则之间的适用关系，即法院只有在积累大量经验并且有足够的信息确信有关行为就算采用合理原则裁判也会得出违法结论后，方可适用本身违法原则。通过该分析，法院最终得出结论：纵向最高价格维持本身并没有违反反垄断法，并且应该依据合理原则对该行为进行审查，从而推翻了Albrecht v. Herald Co.一案的判决。

State Oil Co. v. Khan
国家石油公司诉可汗案*

Case Summary

案件概要

I. Procedural Posture

案件审理历程

Petitioner oil company sought review of a decision from the United States Court of Appeals for the Seventh Circuit that reversed summary judgment for petitioner on respondents' claim under the Sherman Act, 15 U.S.C.S. § 1. The appeals court held based on Supreme Court precedent that petitioner's vertical maximum price fixing scheme was a per se antitrust violation and respondents could have suffered injury from not being able to adjust prices.

上诉人石油公司要求对美国第七巡回上诉法院所作的裁定进行审查，该院撤销了针对被上诉人依据《谢尔曼法》所提出的诉讼请求而作出的简易判决(summary judgment)。上诉法院依据联邦最高法院的先例裁定上诉人的纵向最高价格维持方案[1]本身违反(per se violation)[2]反垄断法，并且被上诉人可能会因不能调整价格而遭受损害。

II. Overview

概要

The court of appeals reversed summary judgment in favor of petitioner oil company on respondent gas station operators' claim under the Sherman Act (Act), 15 U.S.C.S. § 1. The appeals court found it was bound to follow Supreme Court precedent and rule that petitioner's vertical maximum price fixing scheme was a per se antitrust violation and that respondents could have suffered injury from not being able to adjust gasoline prices. The court vacated the judgment and remanded the case for further proceedings. The court held that vertical maximum price fixing was not a per se violation of the Act, and that such price fixing arrangements should be evaluated under the rule of reason. According to the court, there was insufficient economic justification for per se invalidation of vertical maximum price fixing. The court overruled the precedent relied upon by the appeals court, Albrecht v. Herald Co., 390 U.S. 145, 19 L. Ed. 2d 998 (1968), which held that vertical maximum price fixing was per se unlawful. Despite the doctrine of stare decisis, Albrecht was overruled because its theoretical underpinnings had been called into serious question.

上诉法院撤销了针对被上诉人加油站运营方依据《谢尔曼法》所提出的请求而作出的简易判决，该判决裁定上诉人石油公司胜诉。上诉法院认为其应当遵循联邦最高法院的先例，并且据此裁定上诉人的纵向最高价格维持方案本身违反了反垄断法，并且被上诉人可能会因不能调整价格而遭受损害。美国联邦最高法院撤销了原判，并发回重审。联邦最高法院认为纵向最高价格维持本身并没有违反反垄断法，并且应当根据合理原则(rule of reason)[3]对该方案进行审查。联邦最高法院还认为，从经济角度看，并没有足够的理由认定纵向最高价格维持本身是无效的。联邦最高法院推翻了上诉法院所援引的先例（Albrecht v. Herald Co.），该先例认为纵向最高价格维持本身是不合法的。尽管存在遵循先例原则，但是Albrecht v. Herald Co.一案的判决依然被推翻了，其原因在于该判决的理论基础遭到了质疑。

Opinion

判决理由

JUSTICE O'CONNOR delivered the opinion of the Court.

Under § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, "every contract, combination..., or conspiracy, in restraint of trade" is illegal. In Albrecht v. Herald Co., 390 U.S. 145, 19 L. Ed. 2d 998, 88 S. Ct. 869 (1968), this Court held that vertical maximum price fixing is a per se violation of that statute. In this case, we are asked to reconsider that decision in light of subsequent decisionsof this Court. We conclude that Albrecht should be overruled.

《谢尔曼法》第1条（《制定法大全》第26卷第209页）及其修正案（《美国法典》第15标题卷第1条）规定：“任何限制贸易的合同、合并以及共谋都是非法的。”在Albrecht v. Herald Co.案中，上诉法院认为纵向最高价格维持本身违反了该法的规定。在本案中，鉴于上诉法院后续所作出的判决，我们需要重新审议该案的裁决。最终，我们认为Albrecht 案的判决应当被推翻。

I.

第一部分

Respondents, Barkat U. Khan and his corporation, entered into an agreement with petitioner, State Oil Company, to lease and operate a gas station and convenience store owned by State Oil. The agreement provided that respondents would obtain the station's gasoline supply from State Oil at a price equal to a suggested retail price set by State Oil, less a margin of 3.25 cents per gallon. Under the agreement, respondents could charge any amount for gasoline sold to the station's customers, but if the price charged was higher than State Oil's suggested retail price, the excess was to be rebated to State Oil. Respondents could sell gasoline for less than State Oil's suggested retail price, but any such decrease would reduce their 3.25 cents-per-gallon margin.

被上诉人（巴拉卡特·U·可汗及其公司）与上诉人（国家石油公司）签订了一份协议，该协议约定将国家石油公司所有的便利店和加油站出租给被上诉人并由其运营。该协议还约定国家石油公司将按照其所设定的建议零售价（每加仑的利润低于3.25美分）向被上诉人的加油站供油。根据该协议，被上诉人可以以任意价格向客户出售汽油，但是如果该价格高于国家石油公司的建议零售价，那么超过部分将归国家石油公司所有。被上诉人可以以低于建议零售价的价格出售汽油，但是这会使得每加仑的利润减少3.25美分。

About a year after respondents began operating the gas station, they fell behind in lease payments. State Oil then gave notice of its intent to terminate the agreement and commenced a state court proceeding to evict respondents. At State Oil's request, the state court appointed a receiver to operate the gas station. The receiver operated the station for several months without being subject to the price restraints in respondents' agreement with State Oil. According to respondents, the receiver obtained an overall profit margin in excess of 3.25 cents per gallon by lowering the price of regular-grade gasoline and raising the price of premium grades.

在被上诉人运营加油站一年后，他们无法按时缴纳租金。于是，国家石油公司通知被上诉人其欲解除合同，并会向州法院提起诉讼以驱逐被上诉人。应国家石油公司的请求，州法院指定接管人(receiver)运营加油站。接管人不受被上诉人和国家石油公司约定的价格限制的约束，并在此情形下运营了加油站数月。被上诉人称，在降低一般等级汽油价格，并提高高级汽油价格后，接管人所获的总体利润超过每加仑3.25美分。

Respondents sued State Oil in the United States District Court for the Northern District of Illinois, alleging in part that State Oil had engaged in price fixing in violation of § 1 of the Sherman Act by preventing respondents from raising or lowering retail gas prices. According to the complaint, but for the agreement with State Oil, respondents could have charged different prices based on the grades of gasoline, in the same way that the receiver had, thereby achieving increased sales and profits. State Oil responded that the agreement did not actually prevent respondents from setting gasoline prices, and that, in substance, respondents did not allege a violation of antitrust laws by their claim that State Oil's suggested retail price was not optimal.

被上诉人在美国伊利诺伊州北区地区法院起诉国家石油公司，诉称国家石油公司通过禁止被上诉人提高或者降低零售汽油价格来实施转售价格维持，此举违反《谢尔曼法》第1条的规定。被上诉人还称，如果没有与国家石油公司签订协议，被上诉人本可以和接管人一样，根据汽油的等级收取不同的费用，以此提高销售额和利润。国家石油公司则辩称，该协议实际上并没有禁止被上诉人自行设定汽油价格，并且实质上，被上诉人不能因为国家石油公司的建议零售价格并非是最佳选择，而主张国家石油公司违反了反垄断法。

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The District Court found that the allegations in the complaint did not state a per se violation of the Sherman Act because they did not establish the sort of "manifestly anticompetitive implications or pernicious effect on competition" that would justify per se prohibition of State Oil's conduct. App. 43-44. Subsequently, in ruling on cross-motions for summary judgment, the District Court concluded that respondents had failed to demonstrate antitrust injury or harm to competition.  App. to Pet. for Cert. 37a. The District Court held that respondents had not shown that a difference in gasoline pricing would have increased the station's sales; nor had they shown that State Oil had market power or that its pricing provisions affected competition in a relevant market. Id., at 37a, 40a. Accordingly, the District Court entered summary judgment for State Oil on respondents' Sherman Act claim. Id., at 40a.

The Court of Appeals for the Seventh Circuit reversed.  93 F.3d 1358 (1996). The court first noted that the agreement between respondents and State Oil did indeed fix maximum gasoline prices by making it "worthless" for respondents to exceed the suggested retail prices.  Id., at 1360. After reviewing legal and economic aspects of price fixing, the court concluded that State Oil's pricing scheme was a per se antitrust violation under Albrecht v. Herald Co., supra. Although the Court of Appeals characterized Albrecht as "unsound when decided" and "inconsistent with later decisions" of this Court, it felt constrained to follow that decision.  93 F.3d at 1363. In light of Albrecht and Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 109 L. Ed. 2d 333, 110 S. Ct. 1884 (1990) (ARCO), the court found that respondents could have suffered antitrust injury from not being able to adjust gasoline prices.

第七巡回上诉法院撤销了上述判决。首先，上诉法院注意到被上诉人和国家石油公司之间的协议使得被上诉人无法获得超过建议零售价的部分利润，从而固定了汽油的最高售价。上诉法院从法律和经济层面考察了固定最高售价的后果之后，最终依据Albrecht v. Herald Co.这一先例认为国家石油公司的价格机制本身违反了反垄断法。尽管上诉法院认为Albrecht案在判决时并非完美无缺，并且与上诉法院之后的判决也不一致，但是上诉法院依然遵循了这一先例。考虑到Albrecht案和Atlantic Richfield Co. v. USA Petroleum Co.案的判决，上诉法院裁定被上诉人因无法调整汽油价格而遭受了反垄断损害。

We granted certiorari to consider two questions, whether State Oil's conduct constitutes a per se violation of the Sherman Act and whether respondents are entitled to recover damages based on that conduct. 519 U.S.     (1997).

我们签发了调卷令(certiorari)，以查明以下两个问题，即国家石油公司的行为本身是否违反了《谢尔曼法》，以及被上诉人是否有权依据国家石油公司的这一行为要求获得损害赔偿。

II.

第二部分

A

Although the Sherman Act, by its terms, prohibits every agreement "in restraint of trade," this Court has long recognized that Congress intended to outlaw only unreasonable restraints. See, e.g., Arizona v. Maricopa County Medical Soc., 457 U.S. 332, 342-343, 73 L. Ed. 2d 48, 102 S. Ct. 2466 (1982) (citing United States v. Joint Traffic Assn., 171 U.S. 505, 43 L. Ed. 259, 19 S. Ct. 25 (1898)). As a consequence, most antitrust claims are analyzed under a "rule of reason,"  according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint's history, nature, and effect.  457 U.S. at 343, and n. 13 (citing Board of Trade of Chicago v. United States, 246 U.S. 231, 238, 62 L. Ed. 683, 38 S. Ct. 242 (1918)).

尽管《谢尔曼法》禁止任何“限制贸易”(in restraint of trade)的协议，但是上诉法院一直以来都认为国会的本意只是想禁止不合理的限制。因此，上诉法院是依据“合理原则”来分析绝大部分和反垄断法有关的诉讼请求。这一原则要求事实裁定者必须在综合考虑多种因素（包括有关行业的特定信息、某种限制产生前后该行业所处的状态以及该种限制的历史、性质和影响）后判定被诉行为是否对竞争产生了不合理的限制。

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Some types of restraints, however, have such predictable and pernicious anticompetitive effect, and such limited potential for procompetitive benefit, that they are deemed unlawful per se.  Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 2 L. Ed. 2d 545, 78 S. Ct. 514 (1958).Per se treatment is appropriate "once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it." Maricopa County, supra, at 344; see also Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 19, n. 33, 60 L. Ed. 2d 1, 99 S. Ct. 1551 (1979). Thus, we have expressed reluctance to adopt per se rules with regard to "restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious." FTC v. Indiana Federation of Dentists, 476 U.S. 447, 458-459, 90 L. Ed. 2d 445, 106 S. Ct. 2009 (1986).

但是，有些类型的限制会对竞争产生破坏性的影响，并且不太可能产生促进竞争的效果，因而这些限制本身(per se)被认为是不合法的。“只有当法院对某种类型的限制的审判经验使之有把握预测合理原则会证明该种限制是不合法时”，运用本身违法原则(per se rule)才是适当的。[5]因此，“当对商业关系所施加的限制对经济的影响不能够立刻显现的时候”，我们不会采用本身违法原则。

A review of this Court's decisions leading up to and beyond Albrecht is relevant to our assessment of the continuing validity of the per se rule established in Albrecht. Beginning with Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 55 L. Ed. 502, 31 S. Ct. 376 (1911), the Court recognized the illegality of agreements under which manufacturers or suppliers set the minimum resale prices to be charged by their distributors. By 1940, the Court broadly declared all business combinations "formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce" illegal per se.  United States v. Socony-Vacuum  Oil Co., 310 U.S. 150, 223, 84 L. Ed. 1129, 60 S. Ct. 811 (1940). Accordingly, the Court condemned an agreement between two affiliated liquor distillers to limit the maximum price charged by retailers in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 95 L. Ed. 219, 71 S. Ct. 259 (1951), noting that agreements to fix maximum prices, "no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment." Id., at 213.

审查上诉法院在Albrecht案发生前后所做的判决与评估该案中所确立的本身违法原则的后续有效性密切相关。从Dr. Miles Medical Co. v. John D. Park & Sons Co.案开始，上诉法院就意识到生产商或者供应商为批发商设置最低转售价格(minimum resale prices)[6]的协议是非法的。在1940年之前，上诉法院就大体上宣布所有“在州际贸易或者对外贸易过程中以提高、抑制、固定或者稳定某种商品的价格为目的以及会产生此类后果的”企业合并本身都是非法的。因此，上诉法院在Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc.案中，就认为固定最高转售价格协议，“和固定最低转售价格协议一样会削弱零售商的自由，从而限制其根据自己的判断出售商品的能力，故宣判两家白酒蒸馏分支企业之间签订的此类协议是非法的”。

In subsequent cases, the Court's attention turned to arrangements through which suppliers imposed restrictions on dealers with respect to matters other than resale price. In White Motor Co. v. United States, 372 U.S. 253, 9 L. Ed. 2d 738, 83 S. Ct. 696 (1963), the Court considered the validity of a manufacturer's assignment of exclusive territories to its distributors and dealers. The Court determined that too little was known about the competitive impact of such vertical limitations to warrant treating them as per se unlawful.  Id., at 263. Four years later, in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 18 L. Ed. 2d 1249, 87 S. Ct. 1856 (1967), the Court reconsidered the status of exclusive dealer territories and held that, upon the transfer of title to goods to a distributor, a supplier's imposition of territorial restrictions on the distributor was "so obviously destructive of competition" as to constitute a per se violation of the Sherman Act. Id., at 379. In Schwinn, the Court acknowledged that some vertical restrictions, such as the conferral of territorial rights or franchises, could have procompetitive benefits by allowing smaller enterprises to compete, and that such restrictions might avert vertical integration in the distribution process.  Id., at 379-380. The Court drew the line, however, at permitting manufacturers to control product marketing once dominion over the goods had passed to dealers. Id., at 380.

Albrecht, decided the following Term, involved a newspaper publisher who had granted exclusive territories to independent carriers subject to their adherence to a maximum price on resale of the newspapers to the public. Influenced by its decisions in Socony-Vacuum, Kiefer-Stewart, and Schwinn, the Court concluded that it was per se unlawful for the publisher to fix the maximum resale price of its newspapers. 390 U.S. at 152-154. The Court acknowledged that "maximum and minimum price fixing  may have different consequences in many situations," but nonetheless condemned maximum price fixing for "substituting the perhaps erroneous judgment of a seller for the forces of the competitive market." Id., at 152.

Albrecht was animated in part by the fear that vertical maximum price fixing could allow suppliers to discriminate against certain dealers, restrict the services that dealers could afford to offer customers, or disguise minimum price fixing schemes.  Id., at 152-153. The Court rejected the notion (both on the record of that case and in the abstract) that, because the newspaper publisher "granted exclusive territories, a price ceiling was necessary to protect the public from price gouging by dealers who had monopoly power in their own territories." Id., at 153.
 

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In a vigorous dissent, Justice Harlan asserted that the majority had erred in equating the effects of maximum and minimum price fixing. Id., at 156-168 (Harlan, J., dissenting). Justice Harlan pointed out that, because the majority was establishing a per se rule, the proper inquiry was "not whether dictation of maximum prices is ever illegal, but whether it is always illegal." Id., at 165-166. He also faulted the majority for conclusively listing "certain unfortunate consequences that maximum price dictation might have in other cases," even as it rejected evidence that the publisher's practice of fixing maximum prices counteracted potentially anticompetitive actions by its distributors. Id., at 165. Justice Stewart also dissented, asserting that the publisher's maximum price fixing scheme should be properly viewed as promoting competition, because it protected consumers from dealers such as Albrecht, who, as "the only person who could sell for home delivery the city's only daily morning newspaper," was "a monopolist within his own territory." Id., at 168 (Stewart, J., dissenting).

Nine years later, in Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 53 L. Ed. 2d 568, 97 S. Ct. 2549 (1977), the Court overruled Schwinn, thereby rejecting application of a per se rule in the context of vertical nonprice restrictions. The Court acknowledged the principle of stare decisis, but explained that the need for clarification in the law justified reconsideration of Schwinn: "Since its announcement, Schwinn has been the subject of continuing controversy and confusion, both in the scholarly journals and in the federal courts. The great weight of scholarly opinion has been critical of the decision, and a number of the federal courts confronted with analogous vertical restrictions have sought to limit its reach. In our view, the experience of the past 10 years should be brought to bear on this subject of considerable commercial importance." 433 U.S. at 47-49 (footnotes omitted).

九年之后，上诉法院在Continental T. V., Inc. v. GTE Sylvania Inc.一案中推翻了Schwinn案的判决，因此未在非价格纵向限制的情形下运用本身违法原则。尽管上诉法院认同遵循先例原则，但是上诉法院认为为了阐明法律，应该重新审议Schwinn一案的判决：“自从Schwinn案宣判后，其一直都是学术期刊和联邦法院争论的焦点，同时也引起了大家的困惑。大量的学者批评了该案的判决，并且很多联邦法院在审理类似纵向限制的案件时都努力限制该判决的适用。在我们看来，过去十年的经验应当能为这一具有重大商业意义的问题带来新的视角。”

The Court considered the historical context of Schwinn, noting that Schwinn's per se rule against vertical nonprice restrictions came only four years after the Court had refused to endorse a similar rule in White Motor Co., and that the decision neither explained the "sudden change in position," nor referred to the accepted requirements for per se violations set forth in Northern Pacific R. Co., 433 U.S. at 51-52. The Court then reviewed scholarly works supporting the economic utility of vertical nonprice restraints. See id., at 54-57 (citing, e.g., Posner, Antitrust Policy and the Supreme Court: An Analysis of the Restricted Distribution, Horizontal Merger and Potential Competition Decisions, 75 Colum. L. Rev. 282 (1975); Preston, Restrictive Distribution Arrangements: Economic Analysis and Public Policy Standards, 30 Law & Contemp. Prob. 506 (1965)). The Court concluded that, because "departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than--as in Schwinn --upon formalistic line drawing," the appropriate course would be "to return to the rule of reason that governed vertical restrictions prior to Schwinn." GTE Sylvania, supra, at 58-59.

In GTE Sylvania, the Court declined to comment on Albrecht's per se treatment of vertical maximum price restrictions, noting that the issue "involved significantly different questions of analysis and policy." 433 U.S. at 51, n. 18. Subsequent decisions of the Court, however, have hinted that the analytical underpinnings of Albrecht were substantially weakened by GTE Sylvania. We noted in Maricopa County that vertical restraints are generally more defensible than horizontal restraints. See 457 U.S. at 348, n. 18. And we explained in 324 Liquor Corp. v. Duffy, 479 U.S. 335, 341-342, 93 L. Ed. 2d 667, 107 S. Ct. 720 (1987), that decisions such as GTE Sylvania "recognize the possibility that a vertical restraint imposed by a single manufacturer or wholesaler may stimulate interbrand competition even as it reduces intrabrand competition."

Most recently, in ARCO, 495 U.S. 328, 110 S. Ct. 1884, 109 L. Ed. 2d 333 (1990), although Albrecht's continuing validity was not squarely before the Court, some disfavor with that decision was signaled by our statement that we would "assume, arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule." 495 U.S. at 335, n. 5. More significantly, we specifically acknowledged that vertical maximum price fixing "may have procompetitive interbrand effects," and pointed out that, in the wake of GTE Sylvania, "the procompetitive potential of a vertical maximum price restraint is more evident...than it was when Albrecht was decided, because exclusive territorial arrangements and other nonprice restrictions were unlawful per se in 1968." 495 U.S. at 343, n. 13 (citing several commentators identifying procompetitive effects of vertical maximum price fixing, including, e.g., P. Areeda & H. Hovenkamp, Antitrust Law P340.30b, p. 378, n. 24 (1988 Supp.); Blair & Harrison, Rethinking Antitrust Injury, 42 Vand. L. Rev. 1539, 1553 (1989); Easterbrook, Maximum Price Fixing, 48 U. Chi. L. Rev. 886, 887-890 (1981)).

在最近的ARCO案中，尽管Albrecht案的持续有效性并非是上诉法院的审理范围，但是我们假定Albrecht案将本身违法原则适用于纵向最高价格维持是正确的，以此表达了我们对该判决些许的反对。更重要地是，我们明确承认纵向价格维持可以促进品牌间的竞争，并且指出随着 GTE Sylvania案的宣判，“纵向最高价格限制可能产生的促进竞争的效果较Albrecht案宣判时更加明显......这是因为在1968年的时候，排他性经营区安排和其他非价格限制本身是非法的”。

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B

Thus, our reconsideration of Albrecht's continuing validity is informed by several of our decisions, as well as a considerable body of scholarship discussing the effects of vertical restraints. Our analysis is also guided by our general view that the primary purpose of the antitrust laws is to protect interbrand competition. See, e.g., Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 726, 99 L. Ed. 2d 808, 108 S. Ct. 1515 (1988). "Low prices," we have explained, "benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition." ARCO, supra, at 340. Our interpretation of the Sherman Act also incorporates the notion that condemnation of practices resulting in lower prices to consumers is "especially costly" because "cutting prices in order to increase business often is the very essence of competition." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 594, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

So informed, we find it difficult to maintain that vertically-imposed maximum prices could harm consumers or competition to the extent necessary to justify their per se invalidation. As Chief Judge Posner wrote for the Court of Appeals in this case:

"As for maximum resale price fixing, unless the supplier is a monopsonist he cannot squeeze his dealers' margins below a competitive level; the attempt to do so would just drive the dealers into the arms of a competing supplier. A supplier might, however, fix a maximum resale price in order to prevent his dealers from exploiting a monopoly position...Suppose that State Oil, perhaps to encourage...dealer services...has spaced its dealers sufficiently far apart to limit competition among them (or even given each of them an exclusive territory); and suppose further that Union 76 is a sufficiently distinctive and popular brand to give the dealers in it at least a modicum of monopoly power. Then State Oil might want to place a ceiling on the dealers' resale prices in order to prevent them from exploiting that monopoly power fully. It would do this not out of disinterested malice, but in its commercial self-interest. The higher the price at which gasoline is resold, the smaller the volume sold, and so the lower the profit to the supplier if the higher profit per gallon at the higher price is being snared by the dealer." 93 F.3d at 1362. See also R. Bork, The Antitrust Paradox 281-282 (1978) ("There could, of course, be no anticonsumer effect from [the type of price fixing considered in Albrecht], and one suspects that the paper has a legitimate interest in keeping subscriber prices down in order to increase circulation and maximize revenues from advertising").

We recognize that the Albrecht decision presented a number of theoretical justifications for a per se rule against vertical maximum price fixing. But criticism of those premises abounds. The Albrecht decision was grounded in the fear that maximum price fixing by suppliers could interfere with dealer freedom.  390 U.S. at 152. In response, as one commentator has pointed out, "the ban on maximum resale price limitations declared in Albrecht in the name of 'dealer freedom' has actually prompted many suppliers to integrate forward into distribution, thus eliminating the very independent trader for whom Albrecht professed solicitude." 7 P. Areeda, Antitrust Law, P1635, p. 395 (1989). For example, integration in the newspaper industry since Albrecht has given rise to litigation between independent distributors and publishers. See P. Areeda & H. Hovenkamp, Antitrust Law P729.7, pp. 599-614 (1996 Supp.).

The Albrecht Court also expressed the concern that maximum prices may be set too low for dealers to offer consumers essential or desired services.  390 U.S. at 152-153. But such conduct, by driving away customers, would seem likely to harm manufacturers as well as dealers and consumers, making it unlikely that a supplier would set such a price as a matter of business judgment. See, e.g., Lopatka, Stephen Breyer and Modern Antitrust: A Snug Fit, 40 Antitrust Bull. 1, 60 (1995); Blair & Lang, Albrecht After ARCO: Maximum Resale Price Fixing Moves Toward the Rule of Reason, 44 Vand. L. Rev. 1007, 1034 (1991). In addition, Albrecht noted that vertical maximum price fixing could effectively channel distribution through large or specially-advantaged dealers. 390 U.S. at 153. It is unclear, however, that a supplier would profit from limiting its market by excluding potential dealers. See, e.g., Easterbrook, supra, at 905-908. Further, although vertical maximum price fixing might limit the viability of inefficient dealers, that consequence is not necessarily harmful to competition and consumers. See, e.g., Easterbrook, supra, at 907; Lopatka, supra, at 60.

Finally, Albrecht reflected the Court's fear that maximum price fixing could be used to disguise arrangements to fix minimum prices, 390 U.S. at 153, which remain illegal per se. Although we have acknowledged the possibility that maximum pricing might mask minimum pricing, see Maricopa County, 457 U.S. at 348, we believe that such conduct -- as with the other concerns articulated in Albrecht -- can be appropriately recognized and punished under the rule of reason. See, e.g., Easterbrook, 48 U. Chi. L. Rev., at 901-904; see also Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 Geo. L. J. 1487, 1490, n. 17 (1983).

Not only are the potential injuries cited in Albrecht less serious than the Court imagined, the per se rule established therein could in fact exacerbate problems related to the unrestrained exercise of market power by monopolist-dealers. Indeed, both courts and antitrust scholars have noted that Albrecht's rule may actually harm consumers and manufacturers. See, e.g., Caribe BMW, Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 19 F.3d 745, 753 (CA1 1994) (Breyer, C. J.); Areeda, supra, P1636a, at 395; G. Mathewson & R. Winter, Competition Policy and Vertical Exchange 13-14 (1985). Other commentators have also explained that Albrecht's per se rule has even more potential for deleterious effect on competition after our decision in GTE Sylvania, because, now that vertical nonprice restrictions are not unlawful per se, the likelihood of dealer monopoly power is increased. See, e.g., Easterbrook, supra, at 890, n. 20; see also ARCO, 495 U.S.  at 343, n. 13. We do not intend to suggest that dealers generally possess sufficient market power to exploit a monopoly situation. Such retail market power may in fact be uncommon. See, e.g., Business Electronics, 485 U.S. at 727, n. 2; GTE Sylvania, 433 U.S. at 54. Nor do we hold that a ban on vertical maximum price fixing inevitably has anticompetitive consequences in the exclusive dealer context.

After reconsidering Albrecht's rationale and the substantial criticism the decision has received, however, we conclude that there is insufficient economic justification for per se invalidation of vertical maximum price fixing. That is so not only because it is difficult to accept the assumptions underlying Albrecht, but also because Albrecht has little or no relevance to ongoing enforcement of the Sherman Act. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 777, 81 L. Ed. 2d 628, 104 S. Ct. 2731, and n. 25 (1984).Moreover, neither the parties nor any of the amici curiae have called our attention to any cases in which enforcement efforts have been directed solely against the conduct encompassed by Albrecht's per se rule.

Respondents argue that reconsideration of Albrecht should require "persuasive, expert testimony establishing that the per se rule has distorted the market." Brief for Respondents 7. Their reasoning ignores the fact that Albrecht itself relied solely upon hypothetical effects of vertical maximum price fixing. Further, Albrecht's dire predictions have not been borne out, even though manufacturers and suppliers appear to have fashioned schemes to get around the per se rule against vertical maximum price fixing. In these circumstances, it is the retention of the rule of Albrecht, and not, as respondents would have it, the rule's elimination, that lacks adequate justification. See, e.g., GTE Sylvania, supra, at 58-59.

Respondents' reliance on Toolson v. New York Yankees, Inc., 346 U.S. 356, 98 L. Ed. 64, 74 S. Ct. 78 (1953) (per curiam), and Flood v. Kuhn, 407 U.S. 258, 32 L. Ed. 2d 728, 92 S. Ct. 2099 (1972), is similarly misplaced, because those decisions are clearly inapposite, having to do with the antitrust exemption for professional baseball, which this Court has described as "an aberration...resting on a recognition and an acceptance of baseball's unique characteristics and needs," id., at 282. In the context of this case, we infer little meaning from the fact that Congress has not reacted legislatively to Albrecht. In any event, the history of various legislative proposals regarding price fixing seems neither clearly to support nor to denounce the per se rule of Albrecht. Respondents are of course free to seek legislative protection from gasoline suppliers of the sort embodied in the Petroleum Marketing Practices Act, 92 Stat. 322, 15 U.S.C. § 2801 et seq.. For the reasons we have noted, however, the remedy for respondents' dispute with State Oil should not come in the form of a per se rule affecting the conduct of the entire marketplace.

被上诉人还援引了Toolson v. New York Yankees, Inc.案和Flood v. Kuhn案的判决，但是这同样是不合理的，原因在于这两个案件的判决明显不当。法院认为前述案件给予专业棒球运动员反垄断豁免是“一种基于棒球运动员的特性和特殊需求的偏差”。在本案中，我们认为国会未根据Albrecht案进行立法这一事实对案件裁判没有意义。在任何情况下，和价格维持有关的不同立法提案的历史资料既不能支持也不能废除Albrecht案中的本身违法原则。当然，被上诉人有权向《石油销售行为法》(Petroleum Marketing Practices Act)中规定的汽油供应商寻求法律保护。但是，由于我们所知的原因，我们不能通过适用会影响整个市场行为的本身违法原则来解决被上诉人和国家石油公司的纠纷。

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C

 
Despite what Chief Judge Posner aptly described as Albrecht's  "infirmities, [and] its increasingly wobbly, moth-eaten foundations," 93 F.3d at 1363, there remains the question whether Albrecht deserves continuing respect under the doctrine of stare decisis. The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court's prerogative alone to overrule one of its precedents.

We approach the reconsideration of decisions of this Court with the utmost caution. Stare decisis reflects "a policy judgment that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right.'" Agostini v. Felton, 1997 U.S. LEXIS 4000, *58, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 76 L. Ed. 815, 52 S. Ct. 443 (1932) (Brandeis, J., dissenting)). It "is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). This Court has expressed its reluctance to overrule decisions involving statutory interpretation, see, e.g., Illinois Brick Co. v. Illinois, 431 U.S. 720, 736, 52 L. Ed. 2d 707, 97 S. Ct. 2061 (1977), and has acknowledged that stare decisis concerns are at their acme in cases involving property and contract rights, see, e.g., Payne, 501 U.S. at 828. Both of those concerns are arguably relevant in this case.

But "stare decisis is not an inexorable command." Ibid. In the area of antitrust law, there is a competing interest, well-represented in this Court's decisions, in recognizing and adapting to changed circumstances and the lessons of accumulated experience. Thus, the general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress "expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition." National Soc. of Professional Engineers v. United States, 435 U.S. 679, 688, 55 L. Ed. 2d 637, 98 S. Ct. 1355 (1978).As we have explained, the term "restraint of trade," as used in § 1, also "invokes the common law itself, and not merely the static content that the common law had assigned to the term in 1890." Business Electronics, 485 U.S.  at 732; see also GTE Sylvania, 433 U.S. at 53, n. 21; McNally v. United States, 483 U.S. 350, 372-373, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987) (STEVENS, J., dissenting). Accordingly, this Court has reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question. See, e.g., Copperweld Corp., supra, at 777; GTE Sylvania, supra, at 47-49; Tigner v. Texas, 310 U.S. 141, 147, 84 L. Ed. 1124, 60 S. Ct. 879 (1940).

Although we do not "lightly assume that the economic realities underlying earlier decisions have changed, or that earlier judicial perceptions of those realities were in error," we have noted that "different sorts of agreements" may amount to restraints of trade "in varying times and circumstances," and "it would make no sense to create out of the single term 'restraint of trade' a chronologically schizoid statute, in which a 'rule of reason' evolves with new circumstances and new wisdom, but a line of per se illegality remains forever fixed where it was." Business Electronics, supra, at 731-732.Just as Schwinn was "the subject of continuing controversy and confusion" under the "great weight" of scholarly criticism, GTE Sylvania, supra, at 47-48, Albrecht has been widely criticized since its inception. With the views underlying Albrecht eroded by this Court's precedent, there is not much of that decision to salvage. See, e.g., Neal v. United States, 516 U.S. 284, 295, 133 L. Ed. 2d 709, 116 S. Ct. 763 (1996); Patterson v. McLean Credit Union, 491 U.S. 164, 173, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989); Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U.S. 477, 480-481, 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989).

Although the rule of Albrecht has been in effect for some time, the inquiry we must undertake requires considering "'the effect of the antitrust laws upon vertical distributional restraints in the American economy today.'" GTE Sylvania, supra, at 53, n. 21 (quoting Schwinn, 388 U.S.  at 392 (Stewart, J., concurring in part and dissenting in part)). As the Court noted in ARCO, 495 U.S. at 336, n. 6, there has not been another case since Albrecht in which this Court has "confronted an unadulterated vertical, maximum-price-fixing arrangement." Now that we confront Albrecht directly, we find its conceptual foundations gravely weakened.

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In overruling Albrecht, we of course do not hold that all vertical maximum price fixing is per se lawful. Instead, vertical maximum price fixing, like the majority of commercial arrangements subject to the antitrust laws, should be evaluated under the rule of reason. In our view, rule-of-reason analysis will effectively identify those situations in which vertical maximum price fixing amounts to anticompetitive conduct.

当然，在推翻Albrecht 案时，我们并没有认为所有的纵向最高价格维持本身都是非法的。相反，和其他绝大部分受限于反垄断法的商业安排一样，我们应当根据合理原则审查最高价格维持。在我们看来，合理原则会让我们有效地识别最高价格维持是否构成反竞争行为。

There remains the question whether respondents are entitled to recover damages based on State Oil's conduct. Although the Court of Appeals noted that "the district judge was right to conclude that if the rule of reason is applicable, Khan loses," 93 F.3d at 1362, its consideration of this case was necessarily premised on Albrecht's per se rule. Under the circumstances, the matter should be reviewed by the Court of Appeals in the first instance. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

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