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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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