“As Jacobs says later in his discussion:”
Didn’t Jacob say that we should not go by the letter of the law but inject a reasonableness criteria?
You can't really be that stupid, can you? Now I know you did not bother to read Justice Jacobs' dissent.
No, Judge Jacobs did NOT say that, the SUPREME COURT of the United States sets what the LAW IS. . . and THEY established what the LETTER OF THE LAW IS. THE US SUPREME COURT SAID IT. . . With Justice Antonin Scalia writing the opinion for the majority. They not only said it, they INSTRUCTED LOWER COURTS they must use that as a criteria in all future antitrust cases! USE THE BRAIN GOD GAVE YOU! You cannot attribute to Judge Dennis Jacobs what he clearly states and attributes in law to the US Supreme Court.
What the US Supreme Court RULED in the 2007 case of Leegin, 551 U.S., which invalidates ALL CASE LAW THAT PREDATES IT, was how to determine if a particular act WAS or WAS NOT a restraint of TRADE OR NOT. . . and they said:
"“[V]ertical agreements are a customary and even indispensable part of the market system” and so do not represent the same presumptive threat to competition. 11 Areeda & Hovenkamp, supra, ¶ 1902d, at 240. Even a vertical agreement designed to decrease competition among competitors does not pose the threat to market competition that is posed by a horizontal agreement, for two reasons: (1) market forces (such as countervailing measures by competitors) are categorically more effective in countering anti-competitive vertical agreements, and (2) vertical agreements are so fundamental to the operation of the market that uncertainty about the legality of vertical arrangements would impose vast costs on markets. Id. at 240-41. Such market realities are driving the evolution of antitrust law, which has “rejected the approach of reliance on rules governing horizontal restraints when defining rules applicable to vertical ones.” Leegin, 551 U.S. at 888."
The US Supreme Court required in Leegin that the Rule of Reason had to apply and that for any company to be found not guilty of restraint of trade, they merely had to show their participation INCREASED COMPETION.
The Rule of Reason, a principal of LAW, which trumps any statute, and which the US Supreme Court ruled HAD TO BE USED IN APPLE'S CASE AS A VERTICAL PARTICIPANT was ignored throughout this case. Judge Cote cannot simply re-define Apple into being a horizontal defendant by a sweep of her definitional pen! If that were permitted, then the LAW is not the LAW, and it is the the law of whim. It is whatever someone sitting on a bench says it is at the moment, and no one is safe and it cannot be relied on.
If you want to go with the "LETTER OF THE LAW," how is it that Judge Denise Cote can assess a $450,000,000 fine on Apple instead of the "not to exceed $100,000,000" fine absolutely written in the law?