became the seventeenth chief justice of the United States Supreme Court.. United States Jaycees was a 1984 Supreme Court decision, 468 U.S.. The act is also intended to remedy secondary
Trang 1to immobilize a property owner at one place while anACCOMPLICEtakes the owner’s property from a place several miles away, the distance between the owner and the owner’s property is such that the owner could not have prevented the taking even if he had been free to try to interfere
A robbery must also include a taking or asportation, a carrying away by which the goods are taken from the victim’s possession and transferred to the possession of the robber The crime is complete when the robber acquires possession of the property, even for a short time The robber does not have to transport the property away from the physical presence of the person who has lawful possession of it or even escape with it The slightest change of location is sufficient to establish asportation Once the robber takes possession of the property, the offense is complete, even if the robber later abandons the property
The personal property that is taken must have some value, but the amount of its value is immaterial The crime of robbery can be committed even if the property taken is of slight value Actual monetary value is not essential as long as it appears that the property had some value to the person robbed
The property does not have to be taken from the owner or holder of legal title The robber may rob someone who has possession or custody of property, though that person is not the owner of it The person from whom the property was taken must have exerted control over it
The taking must be accomplished either by force or by intimidation This element is the essence and distinguishing characteristic of the offense Taking by force without intimidation is robbery Taking by intimidation without the use
of actual force is also robbery Force and intimidation are alternate requirements, and either is sufficient without the other
The force must be sufficient to effect the transfer of the property from the victim to the robber It must amount to actual personal violence The line between robbery and larceny from the person is not always easy to draw For example, when a thief snatches a purse from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking, the force involved is not sufficient to constitute robbery Hence that crime would be larceny If a
struggle for the purse ensues before the thief can gain possession of it, however, there is enough force to make the taking robbery The same is true of pick-pocketing If the victim is unaware
of the taking, no robbery has occurred and the crime is larceny But if the victim catches the pickpocket in the act and struggles unsuccess-fully to keep possession, the pickpocket’s crime becomes robbery
The particular degree of force becomes important only when considered in connection with the grade of the offense or the punishment
to be imposed Evidence establishing a personal injury or a blow, or force sufficient to overcome any resistance the victim was capable of offering, is not required
A robber may also render the victim helpless
by more subtle means Constructive force includes demonstrations of force, menace, and other means that prevent a victim from exercising free will or resisting the taking of property Administering intoxicating liquors or drugs in order to produce a state of uncon-sciousness or stupefaction is using force for purposes of robbery Constructive force will support a robbery charge
Intimidation means putting in fear The accused must intentionally cause the fear and induce a reasonable apprehension of danger, but not necessarily a great terror, panic, or hysteria in the victim The fear must be strong enough to overcome the victim’s resistance and cause the victim to part with the property The victim who is not fearful of harm from the robber so long as she does what the robber says, but who expects harm if she refuses, is nevertheless “put in fear” for the purposes of robbery
Putting the victim in fear of bodily injury is sufficient The fear can be aroused by words or gestures, such as threatening the victim with a weapon The threat of immediate bodily injury
or death does not have to be directed at the owner of the property It may be made to a member of the owner’s family, other relatives,
or even someone in the owner’s company The force or intimidation must either precede or be contemporaneous with the taking
to constitute a robbery Violence or intimida-tion after the taking is not robbery If, however, the force occurs so soon after the taking that it forms part of the same transaction, the violence
is legally concurrent with the taking Force or
398 ROBBERY
Trang 2intimidation employed after the taking and
merely as a means of escape is not a sufficient
basis for a robbery charge
Unless a statute provides otherwise, a
robbery cannot be committed without criminal
intent The robber must have aSPECIFIC INTENTto
rob the owner of the property The element of
force or intimidation is not a substitute for the
intent to steal
The offender’s intent must be determined
from his or her words and actions A person
who forcibly takes property by mistake or
merely as a joke, without an intent to deprive
the owner of the property permanently, is not
guilty of robbery The intent to steal must be
present at the time the property is taken, but
premeditation is not part of the criminal intent
necessary for the commission of robbery
Most robbery statutes distinguish between
simple robbery and aggravated robbery The
most common aggravating factors are that the
robber was armed with a deadly weapon or
represented that he or she had a gun, that the
robber actually inflicted serious bodily injury, or
that the robber had an accomplice
There are three important federal robbery
statutes The Federal Bank Robbery Act (18
U.S.C.A § 2113) punishes robbery of property
in the custody or possession of any national
bank or of any bank that is insured by the federal
government Two provisions (18 U.S.C.A
§§ 2112, 2114) punish robbery when the
property taken is from the U.S mail or is
property belonging to the federal government
The Hobbs Act (18 U.S.C.A § 1951) punishes the
obstruction of interstate commerce by robbery
FURTHER READINGS LaFave, Wayne 2003 Substantive Criminal Law 2d ed.
St Paul, Minn.: West Group.
Lynch, David and David Brody 2008 Law and Criminal Justice: An Introductory Survey Durham, NC: Carolina Academic Press.
CROSS REFERENCE Asportation; Larceny.
vROBERTS, JOHN GLOVER, JR
In 2005 John G Roberts Jr became the seventeenth chief justice of the United States Supreme Court Robert had previously served as
a judge with the U.S Court of Appeals for the
John Glover Roberts Jr 1955–
2000 1975
1950
1961–73 Vietnam War
1955 Born,
Buffalo, N.Y.
1979 Graduated magna cum
laude from Harvard Law School
u u
1980 Served as law clerk for Supreme Court Justice William Rehnquist
1981 Named special assistant to the U.S attorney general
1982 Appointed as associate counsel to President Ronald Reagan
1986 Joined D.C.
firm of Hogan and Hartson
1989–93 Served
as deputy solicitor general of the U.S.
2001 Nominated
to serve on D.C.
Circuit Court;
nomination blocked in Senate
2003 Renominated to D.C Circuit;
nomination was confirmed in May
2005 Appointed by George
W Bush to serve as chief justice of the Supreme Court
2007 Voted with the majority in
Gonzales v Carhart
2001 September 11 terrorist attacks;
PATRIOT Act signed into law
2003 U.S troops invaded Iraq
John G Roberts.
AP IMAGES
Trang 3District of Columbia PresidentGEORGE W.BUSH
originally nominated Roberts to replaceSANDRA DAY O’CONNOR However, when Chief Justice
WILLIAM REHNQUIST died on September 3, 2005, Bush renominated Roberts to serve as chief justice At age 50, Roberts became the third-youngest chief justice in U.S history
Roberts was born in Buffalo, New York, on September 27, 1955 He attended undergradu-ate school at Harvard College and graduundergradu-ated in
1976 He attended Harvard Law School, where
he was managing editor of the Harvard Law Review, and he graduated magna cum laude
in 1979
Roberts’s first job out of law school was clerking for Judge HENRY J.FRIENDLYof the U.S
Court of Appeals for the Second Circuit The following year, he was hired as a law clerk for Rehnquist, then an associate justice with the Supreme Court In 1981 Roberts became special assistant to U.S Attorney General WILLIAM FRENCH SMITH, and in 1982 he joined the White House staff as associate counsel to then-presidentRONALD REAGAN
Four years later, Roberts signed on with the prestigious Washington, D.C., firm of Hogan and Hartson, the oldest and largest law firm in the nation’s capital During his tenure there, Roberts focused on civil LITIGATION, especially appellate work, and he eventually became head
of the firm’s appellate practice division In 1989
he left private practice to serve as principal deputy solicitor general of the United States, a position he held until 1993 Roberts returned to Hogan and Hartson in 1993 and remained there for the next ten years
As the years passed, Roberts’s professional reputation grew His time at Hogan and Hartson and as deputy solicitor general had enabled him to argue 39 cases before the U.S
Supreme Court by 2001, and he prevailed in 25
of these cases
Roberts was active in conservative politics
The Washington Post reported that Roberts had served as a member of the conservative Federalist Society during the 1990s Roberts also advised Florida governor Jeb Bush during the recount controversy of the 2000 presidential election Critics found his conservative politics suspect, but his advocates believed him to be above such political influences Lawrence Rob-bins, a former attorney in the solicitor general’s office and a partner at Robbins, Russell, Englert,
Orseck, and Untereiner (Washington, D.C.), told Jonathan Groner of the Miami Daily Business Review, “John Roberts is possibly the foremost appellate lawyer of his generation.” President Bush identified Roberts as a candidate for the federal judiciary, and in
2001, Bush nominated Roberts for a position
on the D.C Circuit, which is considered the most influential of the lower federal courts Democrats on the SENATE JUDICIARY COMMITTEE
effectively blocked Roberts’s nomination How-ever, when Republicans regained control of the Senate in 2003, Bush renominated Roberts, and Roberts was confirmed on May 8, 2003
In just over two years on the D.C Circuit, Roberts wrote a total of 49 opinions Only two
of these decisions met with dissents by other judges Conversely, Roberts dissented from other judges’ opinions only three times Roberts earned the reputation as a“judicial minimalist,” meaning that he showed respect for case precedents
It came as little surprise in July 2005 when President Bush announced Roberts as his replacement for the retiring Justice O’Connor Given Roberts’s fairly easy road to confirmation when he was nominated for the D.C Circuit judgeship, his confirmation for the Supreme Court was expected to be less fraught than previous nominees’ battles A committee of the
AMERICAN BAR ASSOCIATION reviewed Roberts on his professional qualifications, including integ-rity, professional competence, and judicial temperament The ABA committee gave Roberts a rating of “well qualified,” which is the highest of three ratings that the ABA might give a judicial candidate
When Rehnquist died on September 3,
2005, Bush renominated Roberts to serve as chief justice Bush asked the Senate to expedite the confirmation process so that Roberts could take the position by the time the Court began its
2005 term in October
During his confirmation hearings in September, Roberts met resistance from Demo-crats over several issues The most pressing of these issues focused on ABORTION rights While serving as a staff lawyer in the Reagan administration, Roberts had written legal memos and briefs critical of the Court’s decision in ROE V WADE (410 U.S 113, 93 S
Ct 705, 35 L Ed 2d 147 [1973]) Senators questioned Roberts at length about his personal
WE HAVE GOTTEN TO
THE POINT THESE
DAYS WHERE WE
THINK THE ONLY WAY
WE CAN SHOW WE’RE
SERIOUS ABOUT A
PROBLEM IS IF WE
ACT OR ANYTHING
ELSE THE FACT OF
THE MATTER IS
CONDITIONS ARE
DIFFERENT IN
CAN BE MORE
RELEVANT.
—JOHN ROBERTS
400 ROBERTS, JOHN GLOVER, JR.
Trang 4views of abortion and how those views might
affect his decision-making Roberts responded
by stressing that he would give appropriate
weight to Roe and other precedents
The Senate confirmed Roberts on September
29, 2005, by a vote of 78-22 He was the
youngest member of the Court at the time of his
appointment, and onlyJOHN JAY(age 44 in 1798)
and JOHN MARSHALL (age 45 in 1801) were
younger when appointed as chief justice
In Gonzales v Carhart (550 U.S 124, 127 S
Ct 1610, 167 L Ed 2d 480 [2007]), the Court
considered its first challenge to an abortion law
since Roberts assumed the position of chief
justice Roberts voted with the majority in
upholding the Partial-Birth Abortion Ban Act,
which prohibited doctors from performing
an abortion using a specific procedure The
lead opinion written by JusticeANTHONY KENNEDY
was joined by Roberts, Scalia,CLARENCE THOMAS,
and SAMUEL ALITO Critics suggested that the
decision marked a shift in the Court’s abortion
JURISPRUDENCE
Other justices, including ANTONIN SCALIA,
have noted that Roberts runs the Court in a
manner similar to Rehnquist Commentators
have noted that Roberts has been consistent in
adhering to conservative principles He has, for
instance, regularly ruled in favor of prosecutors
over defense as well as the state over the
condemned
Roberts has experienced two seizures, one in
1993 and another in 2007; however, doctors
believed that his seizures would not cause
long-term problems Roberts is married to the
former Jane Sullivan, and they have two
adopted children
FURTHER READINGS Sykes, Diane S 2007 “‘Of a Judiciary Nature’: Observations
on Chief Justice Roberts ’s First Opinions” Pepperdine Law Review, 34.
Toobin, Jeffrey 2009 “No More Mr Nice Guy.” New Yorker May 25.
vROBERTS, OWEN JOSEPHUS Owen Josephus Roberts served as an associate justice of the U.S Supreme Court for 15 years
His years on the Court included the NEW DEAL
era when the federal government, under the leadership of President FRANKLIN D ROOSEVELT, expanded its regulation of the economy in an effort to address the effects of the Great Depression Roberts cast the deciding vote in a
Owen Josephus Roberts.
PHOTOGRAPH BY HARRY
& EWING COLLECTION
OF THE SUPREME COURT
OF THE UNITED STATES
1875 Born,
Germantown,
Pa.
◆
1898 Earned LL.B from University of Pa.
1905 Lochner v New York struck down
state maximum working hour laws
◆
1898–1918 Taught law
as adjunct professor at
U Penn.
◆
1924 Appointed special prosecutor in the Teapot Dome scandal
1935 Wrote majority opinion in Grovey v Townsend
1930–45 Served as associate justice of the Supreme Court
1939–45 World War II
1937 Voted with majority in West Coast Hotel v Parrish, which
upheld the constitutionality of state minimum wage laws
1944 Dissented in Korematsu v United States
1948–51 Served as dean of University of Pa Law School
1955 Died, West Vincent Township, Pa.
1914–18 World War I
1950–53 Korean War
1961–73 Vietnam War
Trang 5major case that marked a shift in the Court’s approach to such regulation
Roberts was born on May 2, 1875, in Germantown, Pennsylvania, where he spent much of his childhood He graduated from the University of Pennsylvania, receiving a bachelor of arts degree in 1895 and a bachelor
of laws degree in 1898 Roberts then established
a law practice in Philadelphia, becoming the first district attorney for Philadelphia County
Roberts also taught for twenty years at the University of Pennsylvania, serving as a law professor from 1898 to 1918 In 1924 President
CALVIN COOLIDGEnamed Roberts special attorney for the prosecution in theTEAPOT DOME SCANDAL, which involved unethical behavior in the oil industry In 1930 President HERBERT HOOVER
appointed Roberts to the U.S Supreme Court
Roberts’s tenure on the Supreme Court is largely remembered for the decisive fifth vote he cast inWEST COAST HOTEL V.PARRISH, 300 U.S 379,
57 S Ct 578, 81 L Ed 703 (1937), which upheld the constitutionality of a Washington state
MINIMUM WAGElaw The Court’s decision in West Coast Hotel brought an end to the Lochner Era in
CONSTITUTIONAL LAW, named after the caseLOCHNER
V.NEW YORK, 198 U.S 45, 25 S Ct 539, 49 L Ed
937 (1905) In Lochner the Court struck down a New York law regulating the number of hours that employees could work each week in the baking industry because it violated the free market principles embodied in the doctrine of SUBSTAN-TIVE DUE PROCESS, a doctrine derived from theDUE PROCESS CLAUSE of the Fifth and Fourteenth Amendments to the U.S Constitution
For three decades after Lochner, the Court invalidated numerous state and federal laws regulating businesses, including laws that pre-scribed certain terms and conditions of em-ployment After West Coast Hotel, the Court adopted a more permissive stance toward such laws, permitting both the state and federal governments to pass reasonable business reg-ulations that benefit society Roberts’s vote to uphold the state minimum wage law in West Coast Hotel is memorable not only because it was the decisive vote in a landmark case but also because he had previously voted to strike down similar regulations on a number of occasions
Roberts’s change of heart has been charac-terized as“the switch in time that saved nine,”
suggesting that Roberts cast his vote to defeat President Roosevelt’s court-packing plan To
dilute the voting power of the existing nine justices on the Supreme Court, who had been striking down much New Deal legislation, Roosevelt had proposed to expand the number
of justices, a move that would enable him to add justices more favorable to his New Deal objectives Historians disagree, however, over whether Roberts had knowledge of Roosevelt’s plan at the time he cast his vote Additionally, Roberts had previously voted in favor of state legislation that had been enacted to address the worst effects of the Great Depression, much like some of the New Deal legislation Congress had passed at the federal level For example, in Home Building & Loan Association v Blaisdell,
290 U.S 398, 54 S Ct 231, 78 L Ed 413 (1934), Roberts joined four other justices in upholding a Minnesota law that placed a
MORATORIUMon theFORECLOSUREof mortgages Roberts’s constitutional JURISPRUDENCE is difficult to categorize and was somewhat unpredictable In Grovey v Townsend, 295 U.S 45, 55 S Ct 622, 79 L Ed 1292 (1935), for example, Roberts wrote for a unanimous Court in upholding the constitutionality of white primaries, which denied African Amer-icans the right to elect party delegates for the national convention Three years later, in Missouri ex rel Gaines v Canada, 305 U.S
337, 59 S Ct 232, 83 L Ed 208 (1938), Roberts concurred with a majority of justices who relied
on the EQUAL PROTECTION CLAUSEto invalidate a state statute authorizing the University of Missouri to exclude blacks from its law school Roberts also wrote the majority opinion in the landmark case New Negro Alliance v Sanitary Grocery Co., 303 U.S 552 (1938), which addressed prejudiced hiring practices against African Americans and safeguarded the right to boycott organizations engaging in any such discriminatory practice
Although Roberts upheld white primaries
in Grovey, he supported racial minorities in
KOREMATSU V.UNITED STATES, 323 U.S 214, 65 S
Ct 193, 89 L Ed 194 (1944) In Korematsu the Supreme Court upheld the constitutionality of
an EXECUTIVE ORDER authorizing the forcible detention of more than a hundred thousand Americans of Japanese descent during WORLD WAR II Roberts dissented, attacking the rationale underlying the executive order, which ostensibly had been promulgated for the purpose of protecting the United States from risks of sabotage Roberts argued that forcible detention
THE JUDICIAL
ONLY ONE DUTY—TO
LAY THE ARTICLE OF
WHICH IS INVOKED
BESIDE THE STATUTE
WHICH IS
CHALLENGED AND TO
DECIDE WHETHER THE
LATTER SQUARES
WITH THE FORMER.
—O WEN J OSEPHUS
R OBERTS
402 ROBERTS, OWEN JOSEPHUS
Trang 6was really just a euphemism for imprisonment
and that Japanese Americans were being
punished solely on the grounds of their ancestry
“without evidence or inquiry concerning [their]
loyalty and good disposition towards the United
States.” In this light Roberts concluded that the
record revealed a clear constitutional violation
Roberts bitterly dissented in the 1944 case
Smith v Allwright, which overturned Roberts’
opinion in Grovey by declaring white primaries
unconstitutional Roberts claimed in his dissent
that the Court’s tendency to overrule decisions
likened the decisions to “a restricted railroad
ticket, good for this day and train only.”
Roberts retired from the Supreme Court in
1945 He then returned to the University of
Pennsylvania where he served as dean of the law
school from 1948 to 1951 Four years later, on
May 17, 1955, Roberts suffered a heart attack
and died at his Pennsylvania farm in West
Vincent Township
FURTHER READINGS
Abraham, Henry 1982 Freedom and the Court New York:
Oxford Univ Press.
White, G Edward 1988 The American Judicial Tradition.
New York: Oxford Univ Press.
CROSS REFERENCES
Japanese American Evacuation Cases; Roosevelt, Franklin
Delano “FDR’s Court Packing Plan” (Sidebar).
ROBERTS V UNITED STATES
JAYCEES
Roberts v United States Jaycees was a 1984
Supreme Court decision, 468 U.S 609, 104 S
Ct 3244, 82 L Ed 2d 462, that held that the
right to FREEDOM OF ASSOCIATION guaranteed
under the First and Fourteenth Amendments
to the Constitution did not include the right of
a commercial association to deny women
admission to the organization because of their
gender In a unanimous vote, the Court
emphasized that the state had a compelling
interest to eliminate SEX DISCRIMINATION and
assure its citizens equal access to publicly
available goods and services
The U.S Jaycees (Jaycees) was founded as
the Junior Chamber of Commerce in 1920 It is
a national organization, which at the time of the
litigation had more than 235,000 members The
national organization set membership
require-ments for local chapters, one of which limited
membership to men between the ages of 18
and 35 When the Minneapolis and St Paul chapters of the Jaycees admitted women in the mid-1970s, the U.S Jaycees imposed a number
of sanctions on those chapters for violating the bylaws For example, it denied their members eligibility for state or national office
or awards programs and refused to count their membership in computing votes at national conventions
In December 1978 the president of the Jaycees advised both chapters that a motion to revoke their charters would be considered at a forthcoming meeting of the national board of directors Members of both chapters filed charges of sex discrimination with the Minne-sota Department of Human Rights, alleging that the exclusion of women from full membership required by the national organization’s bylaws violated the Minnesota Human Rights Act (Minn Stat § 363.03, subd 3 [1982]) The members argued that the Jaycees organization was a public accommodation within the mean-ing of the act and was therefore bound not to discriminate on the basis of gender
The Minnesota Human Rights Department ruled that the membership policy violated the act The Jaycees then filed suit in federal court alleging that a requirement that would force the organization to accept women as regular members would violate the male members’
constitutional rights of free speech and associa-tion The federal court certified a question to the Minnesota Supreme Court, asking whether the Jaycees organization was a“place of public accommodation” within the meaning of the state’s Human Rights Act
The supreme court answered affirmatively, concluding that the Jaycees organization is a
“business” in that it sells goods and extends privileges in exchange for annual membership dues, it is a“public” business in that it solicits and recruits dues-paying members based on unselective criteria, and it is a public business
“facility” in that it conducts its activities at fixed and mobile sites within the state of Minnesota
The federal district court ruled in the state’s favor, and the Jaycees appealed The Eighth Circuit Court of Appeals reversed the decision, finding that in requiring the admission of women, the act violated the First and FOUR-TEENTH AMENDMENT rights of the organization’s members
ROBERTS V UNITED STATES JAYCEES 403
Trang 7The U.S Supreme Court disagreed In a unanimous ruling, the Court admitted that the Jaycees’ freedom of association rights were infringed by the Minnesota Human Rights Act Justice WILLIAM J BRENNAN JR noted that the Jaycees’ freedom of association related to the expression of collective views and interests The right of association was not absolute, however
If the state could demonstrate a compelling state interest and show that the remedy was narrowly tailored, the prohibition on gender discrimina-tion would be permitted
Brennan found that the act reflected Min-nesota’s “strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services.” This goal “plainly serves compel-ling state interests of the highest order.”
Having found a compelling STATE INTEREST, Brennan concluded that in applying the act to the Jaycees, the state had advanced its interests
in the least restrictive way The Jaycees could not demonstrate any “serious burdens on the male members’ freedom of expressive associa-tion.” The Court dismissed the contention by the Jaycees that women members might have a different view or agenda than men This contention was based on“unsupported general-izations about the relative interests and per-spectives of men and women.” The Court would not, stated Brennan, “indulge in the sexual stereotyping that underlies” the Jaycees’
argument
In a concurring opinion, Justice SANDRA DAY
O’CONNOR stated that the Jaycees was a non-expressive commercial association and that these associations have long been the subject
of greater government regulatory control
FURTHER READINGS Doering, Shannon L 1999 “Treading on the Constitution
To Get a Foot in the Clubhouse Door ” Nebraska Law Review 78 (summer).
Gutman, Amy 1998 Freedom of Association Princeton, NJ:
Princeton Univ Press.
Lindner, Douglas O 1984 “Freedom of Association after Roberts v United States Jaycees ” Michigan Law Review
82 (August) Available online at http://www.law.umkc.
edu/faculty/projects/ftrials/conlaw/robertsarticle.html;
website home page: http://www.law.umkc.edu (accessed September 7, 2009).
CROSS REFERENCES Equal Protection; First Amendment; Fourteenth Amend-ment; Women ’s Rights.
ROBINSON-PATMAN ACT The Robinson-Patman Act is a 1936 statute (15 U.S.C.A § 13(a–f) that amended Section 2 of theCLAYTON ACT(Oct 15, 1914, ch 323, 38 Stat 730), which was the first antitrust statute aimed
at price DISCRIMINATION The Robinson-Patman Act prohibits a seller of commodities from selling comparable goods to different buyers at different prices, except in certain circumstances The Robinson-Patman Act seeks to limit the ability of large, powerful buyers to gain price discounts through the use of their buying power Although the act remains an important antitrust statute, private parties do not use it nearly as often as they use the Sherman Act, in part due to the Robinson-Patman Act’s convo-luted and complicated language The govern-ment, which may bring an action under the Robinson-Patman Act through the Federal Trade Commission (FTC), rarely initiates actions under the statute
In fact, the Robinson-Patman Act has been severely criticized throughout its history, both for its poor drafting and the economic theory behind it Even theSUPREME COURThas criticized the act on more than one occasion, stating in
1952 that it is“complicated and vague in itself and even more so in its context Indeed, the Court of Appeals seems to have thought
it almost beyond understanding” (FTC v Ruberoid Co., 343 U.S 470, 72 S Ct 800, 96
L Ed 1081[1952]) Nevertheless, the Robinson-Patman Act remains an important deterrent and remedy to market-power abuses by large and powerful buyers
The Robinson-Patman Act was passed during the Great Depression following the emergence of large, successful grocery-store chains Small, independent grocery stores and their suppliers lobbied Congress to do some-thing about the large chains, which were alleged
to have exercised their superior buying power to achieve price discounts, driving small grocers out of business The United States Wholesale Grocers Association drafted the original bill of what was to become the Robinson-Patman Act Many critics of the act point out that Congress passed the act with the protection of small grocers and their wholesalers in mind, rather than the welfare of competition or the con-sumer
The Robinson-Patman Act was intended to remedy perceived shortcomings in the Clayton
404 ROBINSON-PATMAN ACT
Trang 8Act The federal courts had determined that the
Clayton Act did not apply to price
discrimina-tion based on quantity, which was precisely
what the small, independent businesses were
worried about The act considerably expanded
the scope of the Clayton Act by specifically
prohibiting discounts based solely on quantity,
except in certain situations The act’s provisions
apply both to sellers who offer discriminatory
prices and to buyers who knowingly receive
them The act is also intended to remedy
secondary line injury, which is injury to
competitors of a buyer who receives a
discrimi-natory price, in addition to primary line injury,
which refers to injury to competitors of a seller
who offers a discriminatory price Both private
parties and the FTC may use the statute A private
party can obtain, in appropriate circumstances,
TREBLE DAMAGES from a price discriminator—in
other words, three times the party’s actual
damages
Jurisdictional Elements
To invoke the provisions of the
Robinson-Patman Act, certain jurisdictional elements
must be established The act applies only (1)
to sales (2) in commerce (3) of commodities (4)
of like grade and quality The sales requirement
excludes transfers, leases, or consignment sales
from the act’s provisions Other transfers that
do not meet the legal definition of a sale, such as
an offer or bid, are not covered by the act
Finally, the plural sales is important The act
applies only where there are two completed
sales to different purchasers at different prices
The commerce specification requires at least
one of the sales to be in interstate commerce,
meaning that the goods must have physically
crossed a state line
The Robinson-Patman Act applies only to
sales of commodities or tangible goods The
courts have determined that the act is not
available to remedy discriminatory pricing of
services, money (e.g., loans), insurance,
elec-tricity, advertising, or photo processing
(pri-marily a service) In a case such as photo
processing, where the product is really both a
commodity and a service, the courts look to the
“dominant feature” of the transaction If the
dominant feature is not a commodity, the act
will not apply Finally, the act applies only to
goods of “like grade or quality.” Obviously the
determination of whether two goods are of like
grade and quality is somewhat subjective The
courts have applied several evidentiary stan-dards to this determination For the act to apply, the goods must be at least reasonably interchangeable For example, a generic and brand-name food product are of“like grade and quality” if the only real difference between them
is the brand name or label itself
Proving Price Discrimination
After the jurisdictional elements of the Robinson-Patman Act have been satisfied, aPLAINTIFFmust establish price discrimination by theDEFENDANT,
as well as injury to competition, to prove a violation of the main provisions of the act The price discrimination element is actually easy
to establish; only a difference in price in two different sales is required The price refers to the actual price paid, net of discounts and allow-ances Conversely, there is no price discrimina-tion under the act where the same price is charged to two buyers, even if the seller’s costs
in serving one buyer are much higher than the costs of serving the other
The injury to competition element is more difficult to establish Harm to only the individ-ual plaintiff is not enough to prove injury to competition Although the plaintiff need not prove actual harm to competition, due to the difficulty of proving it in court, there must be at least a “reasonable possibility” that the price discrimination affected competition in the overall market for the product As noted earlier, there are two types of injury to competition due
to price discrimination: primary line injury and secondary line injury Primary line injury refers
to injury to the competitors of the seller, who lose the business of the buyers who take advantage of the seller’s discriminatory price
Secondary line injury refers to injury to the competitors of the buyer, who are unable to take advantage of the discriminatory prices obtained by the buyer
A primary line injury may be proved in two ways A plaintiff may present evidence of the seller’s intent to destroy a competitor, either by
DIRECT EVIDENCE or INDIRECT EVIDENCE such as business tactics and unexplained price moves
Otherwise, the plaintiff must prove that the seller’s discriminatory price caused a substantial change in market shares in the product The latter is nearly impossible to prove, because courts, commentators, and economists have frequently rejected the idea that discriminatory
ROBINSON-PATMAN ACT 405
Trang 9pricing poses a long-term threat to competition.
It is also difficult to prove a seller’s intent to destroy a competitor, because a seller isn’t likely
to leave evidence of such an intent, and it is difficult to infer such an intent One way to prove intent to injure competition is to show that the seller made sales at prices below the seller’s average cost of producing the product long enough to force equally efficient compe-titors out of business Because of the difficulties
in proving a primary line injury under the Robinson-Patman Act, plaintiffs alleging a primary line injury from a discriminatory price are more likely to seek a remedy under other antitrust statutes
A plaintiff claiming a secondary line injury must also meet several requirements to prove injury to competition The plaintiff must show that it competed in fact, not just potentially, with a buyer who received a discriminatory price, that the price difference was substantial, and that the price difference existed over time
Once these factors are established, a presump-tion is created that the price discriminapresump-tion injured competition This presumption can be overcome only by evidence proving there was
no causal connection between the discrimina-tory price received by the buyer and lost sales or profits of the buyer’s competitors
Defenses to a Price Discrimination Claim
Even if a plaintiff establishes the jurisdictional elements of a claim under the Robinson-Patman Act and proves a discriminatory price and injury to competition, the defendant may still raise defenses that will defeat the plaintiff’s claim Three main defenses exist: “meeting competition,” “cost justification,” and “func-tional availability.”
Under the meeting-competition defense, a discriminatory price is lawful when the seller is acting in GOOD FAITH to meet an equally low price of a competitor This defense is absolute and will bar a claim under the Robinson-Patman Act regardless of injury to competitors
or competition
Under the cost-justification defense, a seller who offered a discriminatory price may defeat a Robinson-Patman Act claim by establishing that the difference in price was justified by “differ-ences in the cost of manufacture, sale, or delivery resulting from the differing methods
or quantities” in which the goods are sold
Proving cost justification is difficult because of the complicated accounting analysis required to establish the defense, and therefore it is rarely used
Although it is not mentioned in the act itself, the functional-availability defense allows a seller who offered a discriminatory price to avoid liability under the Robinson-Patman Act
if the seller can prove that the discriminatory price the disfavored buyer did not receive was functionally or realistically available to that buyer Usually this defense involves proof that the disfavored buyer was able to qualify for some discount offered by the seller but failed to take advantage of it
The basic prohibitions and defenses are contained in Sections 2(a) and 2(b) of the Robinson-Patman Act The act contains some special provisions as well Sections 2(d) and 2(e)
of the act deal with services and promotional payments that might be provided in connection with a sale of goods Section 2(d) allows a seller
to give discounts to buyers who perform certain services, such as promotions, that the seller would otherwise provide Substantially similar discounts must be offered to all buyers of like goods, or else the act is violated Section 2(e) prohibits a seller from discriminating in the furnishing of facilities and services for the processing, handling, or sale of goods
Section 2(c) of the act prohibits bogus brokerage arrangements whereby large buyers attempt to obtain illegal discounts disguised as brokerage commissions This provision is usually invoked where the “broker” does not actually render any service to the seller but is merely a large-volume buyer This section also applies to certain illegal brokerage payments and commercialBRIBERY Section 2(f ) of the act specifically provides that it is unlawful for a buyer to knowingly solicit or receive an unlawfully discriminatory price
Criticisms of the Act
The Robinson-Patman Act has been widely criticized throughout its history, although Congress has retained the act in its original form The complicated and convoluted lan-guage of the act makes it difficult to understand and interpret The courts have applied its provisions inconsistently over the years and have often confused the proof required for a violation of the Robinson-Patman Act with the
406 ROBINSON-PATMAN ACT
Trang 10standards used in cases brought under the
Sherman Act (July 2, 1890, ch 647, 26 Stat 209,
15 U.S.C.A §§ 1 et seq.) Many critics suggest
that the act is designed merely to protect small
business and that it protects competitors rather
than competition
The act has been attacked on economic
grounds as well Most economists believe that
discriminatory pricing cannot lead to monopoly
power and injury to competition, because the
seller offering the discriminatory price cannot
profitably sustain the discriminatory price long
enough to drive out competitors and, more
importantly, keep them out In fact, the act
may discourage competition For example,
the U.S Supreme Court held in the widely
criticized Utah Pie case that under the
Robin-son-Patman Act, a national frozen pie seller that
sought to enter a new geographical market
could not charge a lower price in the new
market than it charged in its existing markets
(Utah Pie Co v Continental Baking Co., 386
U.S 685, 87 S Ct 1326, 18 L Ed 2d 406
[1967]) Critics suggest that this interpretation
of the act may discourage large, national sellers
from entering a new market, even though the
consumer and competition in the new market
would benefit
Over the last several decades, fewer and
fewer enforcement agencies and private litigants
have used the Robinson-Patman Act, for several
reasons First, the legal precedents and theories
behind the act have become so complex that
plaintiffs usually resort to the more basic
antitrust statutes, such as the Sherman Act
Second, the defenses to actions under the
Robinson-Patman Act, such as the meeting
competition defense, have become substantially
more available and effective as the markets for
most products have expanded and increased in
sophistication
Despite the decline in its use, the
Robinson-Patman Act is still an important antitrust
statute It acts as both a deterrent and a remedy
to abuses to market power by large and
powerful businesses and reflects the nation’s
desire to offer some protection to small, family
businesses against the predatory acts of national
competitors
FURTHER READINGS
Briley, Michael M 1996 “Price Discrimination under the
Robinson-Patman Act ” University of Toledo Law
Review 27 (winter).
Bruckmann, Barbara O 2000 “Discounts, Discrimination, and Exclusive Dealing: Issues under the Robinson-Patman Act ” Antitrust Law Journal 68 (summer).
Calvani, Terry, and Gilde Breidenbach 1990 “An Introduc-tion to the Robinson-Patman Act and Its Enforcement
by the Government.” Antitrust Law Journal 59 (fall).
Lee, Evan 2000 “Supermarket Slotting Fees (allowances):
Are They Legal under Sections 2(c) and 2(d) of the Robinson-Patman Act? ” Whittier Law Review 22 (winter).
Scher, Irving 2001 Living with the Robinson-Patman Act.
Washington, D.C.: Bureau of National Affairs.
CROSS REFERENCES Antitrust Law; Monopoly; Sales Law; Sherman Anti-Trust Act.
vROBINSON, SPOTTSWOOD WILLIAM, III
Spottswood William Robinson III was a retired federal appeals court judge, who, before his appointment, was a law professor and an attorney who was actively involved in the CIVIL RIGHTS MOVEMENT Robinson worked with THUR-GOOD MARSHALLand the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund during the 1940s and 1950s to desegregate schools
Robinson was born on July 26, 1916, in Richmond, Virginia He attended Virginia
Spottswood W Robinson III BETTMANN/CORBIS ROBINSON, SPOTTSWOOD WILLIAM, III 407