Brett Stuff
Judging the Judges
Term Year: 2018

Apple Inc., Petitioner v. Robert Pepper, et al.

Summary Analysis

DATE: 2019-05-13
DOCKET: 17-204
NAME: Apple Inc., Petitioner v. Robert Pepper, et al.

   AUTHOR: Kavanaugh
   JOINING: Ginsburg, Breyer, Sotomayor, Kagan
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Gorsuch
   JOINING: Roberts, Thomas, Alito
   GOOD: No

Case Commentary

Hey, guess what? I'm not a lawyer. And the Rule of Law is a secondary (if not tertiary) concern of mine. So, please go elsewhere for your Legal Advice. This page is about the Philosophy of Law, not the Law itself.

It's odd how little I care about vocabulary. I'm very much a user of Double Speak. As in, Small Words Double Plus Good For All. But the Legal World seems to have a fetish about using archaic (and/or little used) terms.

Monopoly: One Seller!

Monopsonist: One Buyer!

I view the question at hand slightly differently than The Court. I would phrase the principle question as:
Are we dealing with a Market or a Marketplace?
And really, the answer is simple enough. A proprietor (whoever that might be) controls their Market within the limits of the Marketplace.

There is not one Marketplace, but rather a cascade, of which the following are but a few examples.
One purchases from the lowest (most indented) entry in the tree. So in the above, one is doing business with either a Seller or a Store, but not with a Flea Market or a Shopping Center.

As I understand it (this being an open ended disclaimer and due notice of the limits of my comprehension): a buyer can sue the seller (from whom they made the purchase and according to Illinois Brick) but not The Markets in which those sellers reside. Or more specifically to Brick, if one is unhappy with their Contractor, sue away. But one cannot sue the Subcontractors or Suppliers of that Contractor directly... a statement, which upon reflection, I pretty much doubt, but which would seem (so maybe I'm wrong) to be the holding in Brick. Of course, many Contracts have Pass-Through provisions, so maybe it has more to do with the Contract (and Subcontracts) signed than anything else.

I worked as a Material Supplier for many a year. And many of the Contracts which passed through my hands (I was not the signatory, so who knows what they looked like in the end; but as written, they often) had provisions whereby The Supplier was to 'Defend and Hold the Purchaser Harmless'. So even if not sued directly, by virtue of such a provision, one could be brought into a lawsuit by contractual fiat... if that is the right term.

See how quickly these things become complicated. Ignorance of a little quickly becomes ignorance of a lot. Do not underestimate my ignorance... or my total disregard for self said same. In truth, I'm just going to call it Cognitive Bliss and leave it at that.

Per the discussion at hand, Apple claims that it's App Store is unto a Shopping Plaza and not a Store. And as such, is immune to any of the lawsuits a Primary Seller might face from it's Customers.

I would disagree, label the App Store (as it's name might suggest as) a store, and leave Apple open to liability to those I would call it's Customers.

There is a lot of verbal wrangling in this case. And some of the most important words wrangled by The Court in this case constitute the phrase proximate cause. Now, I believe Apple is situation right next to the Consumer.
I don't see anyone being in-between.

But Apple contends (if I understand their argument) the situation is more like:
This is not my cognitive (and/or emotional) experience with the App Store, so I give no credence to Apple's point of view.

Perhaps more ironically (or not ironic in the least if one has read any of these Judging the Judges write-ups before), I could care less about proximate cause.

Suppose we have the following Fictitious Situation (and please note, I am not likening Apple to the Mafia, I'm just illustrating an example):
  1. The Market
    • The Mafia (which illegally demands protection money)
      • A Butcher (who values their life so they pay the protection money)
        • A House Wife (or House Husband, who indirectly pays the extortion money because they like steak)
The Wife (or Husband) is clearly impacted. So, they should be able to sue the Mafia... not that I am advocating suing the Mafia, as that just tends to get one killed.

But I think the point is made.

In future years, perhaps I should track how pathetic the Dissent's Arguments are on the theory that the more pathetic they are, the farther from Truth their position resides.

In this case, the Dissent complains about the difficulty of splitting up harm in multiple directions; and presumably, would be even more bent out of shape if we allowed (as I would) those who are two and three levels removed to capture damages, as well.

But I don't care about the difficulties involved. Understanding the Legal System is darn difficult. And I question whether a single Simplifying Precedent or Bright Line Rule has ever simplified anything.

So, take your difficulty and <edit>!

Judging the Judges

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Seriously, <edit>!

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial