Per Se Violations in Antitrust Law: Confusing Offenses with Defenses
![handle is hein.journals/glj77 and id is 187 raw text is: COMMENTARY
Per Se Violations' in Antitrust Law: Confusing
Offenses with Defenses
THOMAS G. KRATTENMAKER*
Antitrust law opinions and commentaries are littered with references to
per se rules. This concept has some utility, but not when employed in its
most common manner, to describe an antitrust violation. There is, should
be, and can be no such thing as a per se violation of the antitrust laws. Anti-
trust law does, however, helpfully and intelligibly reject certain defenses to or
justifications for some alleged antitrust violations on the grounds that those
defenses are per se inadmissible or impermissible.
The outcomes that antitrust law generates will'not change significantly as
a consequence of realizing that per se rules do not define antitrust violations,
but instead govern the disposition of some defenses. This realization, how-
ever, will help courts structure more rational inquiries that pay increased
attention to the substantive goals of antitrust law. In order to improve anti-
trust analysis, courts therefore should abandon the notion of per se violations
and focus on categorizing certain defenses as per se inadmissible.
I. PER SE RULES IN ANTITRUST LAW
Antitrust enforcers and judges classify antitrust proscriptions in either of
two assertedly dichotomous ways. Some antitrust rules, we are told, deline-
ate per se violations.' Other norms describe how to evaluate behavior ac-
cording to the rule of reason.2 Certain facts may establish a violation of a
* Associate Dean and Professor of Law, Georgetown University Law Center. B.A. 1965,
Swarthmore College; J.D. 1968, Columbia University. I am grateful to Victor Kramer, Robert
Lande, Robert Pitofsky, Steven Salop, Joseph Simons, and Donald Turner for comments on earlier
drafts.
1. See, e.g., Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S.
284, 290 (1985) (This Court has long held that certain concerted refusals to deal or group boycotts
are so likely to restrict competition without any offsetting efficiency gains that they should be con-
demned as per se violations of § 1 of the Sherman Act.). As far as I can ascertain, the Supreme
Court first employed the phrase per se to describe certain antitrust violations in United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940) (Under the Sherman Act, a combination
formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the
price of a commodity in interstate or foreign commerce is illegal per se.).
2. See, e.g., Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984) ([In distributor-
termination cases... concerted action on nonprice restrictions... [is] judged under the rule of
reason, which requires a weighing of the relevant circumstances of a case to decide whether a re-
strictive practice constitutes an unreasonable restraint on competition.). The term rule of rea-](ViewImageLocal?handle=hein.journals/glj77&div=14&collection=&method=preview&ext=.png&size=3)
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Per Se Violations in Antitrust Law: Confusing Offenses with Defenses
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