John Marshall Harlan II

“ Compelling suppliers to make promotional allowances available to retailers with whom they do not deal is no simple matter. The supplier could deal through his wholesalers, imposing restrictions on them to guarantee that an 'allowance' is actually passed through to retailers, only by running afoul of the Sherman Act. ”

“ The supplier is asked to offer 'equal' promotional allowances to a direct-buying chain and a set of small retailers who buy through wholesalers who presumably carry much of the promotion load; the supplier risks treble damages if his guess as to what is even-handed treatment turns out to be erroneous. ”

“ An example is Eine Kleine Juristische Schlummergeschichte, 79 Harv.L.Rev. 921.↑ See, e.g., Shniderman, The Impact of the Robinson-Patman Act on Pricing Flexibility, 57 Nw.U.L.Rev. 173; Austern, Presumption and Percipience About Competitive Effect Under Section 2 of the Clayton Act, 81 Harv.L.Rev. 773. The confusion is all the more unfortunate in a field where actual conflicting objectives are many: 'competitive' purposes are often at odds with 'protective' purposes ”