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2021 Colum. Bus. L. Rev. 1 (2021)

handle is hein.journals/colb2021 and id is 1 raw text is: INTRODUCTION TRACING THE EVOLVING SCOPE OF THE RULE OF REASON AND THE PER SE RULE William H. Rooney, Timothy G. Fleming, & Michelle A. Polizzano* Analysis of alleged antitrust violations in the United States is conducted by generally using one of two rules of decision. Under the rule of reason, the presumptive mode of analysis, courts identify and balance the procompetitive and anticompetitive effects of a challenged restraint. Under the per se rule, courts have identified a narrow class of restraints (now limited to horizontal restraints) that always, or almost always, tend to be anticompetitive. If the restraint exists in the form contemplated by the per se rule, the court must find that it was illegal. This Introduction traces the development of both the rule or reason and the per se rule since the adoption of the Sherman Act. As detailed below, the ebb and flow of the rule of reason and the per se rule have been inversely related. The current era, in which the rule of reason is flourishing, has been marked by an increased role of economics in the assessment of restraints and a decreased willingness by courts to accept asserted characterizations of price fixing or market allocation as sufficient for the restraint to warrant per se treatment. * The authors prepared this Introduction in connection with the 2020 William Howard Taft Lecture. This Introduction represents the tentative thoughts of the authors and should not be construed as the position of any other person or entity. This Introduction is provided for news and informational purposes only and does not take into account the qualifications, exceptions, and other considerations that may be relevant to particular situations. Nothing contained herein constitutes, or is to be considered, the rendering of legal advice, generally or as to a specific matter, or a warranty of any kind. Readers are responsible for obtaining legal advice from their own legal counsel. The authors disclaim liability for any errors in, or any reliance upon, this information.

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