to immobilize a property owner at one place while an ACCOMPLICE takes 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 poss ession 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 appear s 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 establi shing 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 caus e 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 constitu te 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 taki ng. Force or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 398 ROBBERY intimidation 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 a SPECIFIC INTENT to 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 statu tes 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 H obbs 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. v ROBERTS, 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 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROBERTS, JOHN GLOVER, JR. 399 District of Columbia. President GEORGE W. BUSH originally nominated Roberts to replace SANDRA 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 graduated 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. FRIENDLY of 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- president RONALD 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 Je b 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 Ro b- 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, professio nal 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 PASS A FEDERAL LAW , WHETHER IT IS THE VIOLENCE AGAINST WOMEN ACT OR ANYTHING ELSE .THE FACT OF THE MATTER IS CONDITIONS ARE DIFFERENT IN DIFFERENT STATES, AND STATE LAWS CAN BE MORE RELEVANT . —JOHN ROBERTS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 400 ROBERTS, JOHN GLOVER, JR. views of abortion and how those views might affect his dec ision-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 only JOHN 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 w ritten by Justice ANTHONY 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. v ROBERTS, OWEN JOSEPHUS Owen Josephus Rober ts 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 ▼▼ ▼▼ Owen Josephus Roberts 1875–1955 18751875 19251925 19501950 19751975 19001900 ❖ ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROBERTS, OWEN JOSEPHUS 401 major case that marked a shift in the Court’s approach to such regulat ion. 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 COOLIDGE named Roberts special attorney for the prosecution in the TEAPOT DOME SCANDAL, which involved unethical behavi or 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 in WEST 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 WAGE law. The Court’s decision in West Coast Hotel brought an end to the Lochner Era in CONSTITUTIONAL LAW, named after the case LOCHNER 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 the DUE 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 legis lation 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 MORATORIUM on the FORECLOSURE of 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 CLAUSE to 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 Unite d States from risks of sabotage. Roberts argued that forcible detention THE JUDICIAL BRANCH HAS ONLY ONE DUTY —TO LAY THE ARTICLE OF THE CONSTITUTION WHICH IS INVOKED BESIDE THE STATUTE WHICH IS CHALLENGED AND TO DECIDE WHETHER THE LATTER SQUARES WITH THE FORMER . —OWEN JOSEPHUS ROBERTS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 402 ROBERTS, OWEN JOSEPHUS was really just a euphemism for imprisonment and that Japanese America ns 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 associatio n 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 Righ ts 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROBERTS V. UNITED STATES JAYCEES 403 The 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 dismi ssed 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 the CLAYTON 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 the SUPREME COURT has 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 lobbi ed 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 404 ROBINSON-PATMAN ACT Act. 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 th e sta tut e. A privat e party can obtain, in appropriate circumstances, TREBLE DAMAGES from a price discriminator—in other words, three times the party’sactual 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 commerc e, 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, a PLAINTIFF must establish price discrimination by the DEFENDANT, 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ROBINSON-PATMAN ACT 405 pricing 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 discrimination 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 ma y 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 disc riminatory price may defeat a Robinson-Patman Act claim by establishing that the difference in price was justified by “differ- ences in the cost of man ufacture, 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 discrimi natory 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 w here 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 commercial BRIBERY. 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 406 ROBINSON-PATMAN ACT standards 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 prote ct 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 disc riminatory price long enough to drive out competito rs 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 exist ing 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. v ROBINSON, 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 MARSHALL and the National Association for the Advancement of Colored People ( NAACP) Legal Defense and Educational Fund dur ing 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ROBINSON, SPOTTSWOOD WILLIAM, III 407 . States 19 48 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. SUPREME COURT OF THE UNITED STATES ▼▼ ▼▼ Owen Josephus Roberts 187 5–1955 187 5 187 5 19251925 19501950 19751975 19001900 ❖ ❖ 187 5 Born, Germantown, Pa. ◆ 189 8 Earned LL.B. from University of Pa. 1905. the taking that it forms part of the same transaction, the violence is legally concurrent with the taki ng. Force or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 3 98 ROBBERY intimidation employed