How and Why the Per Se Rule Against Price-Fixing Went Wrong

Sheldon Kimmel

Supreme Court Economic Review, 2011, vol. 19, issue 1, 245 - 270

Abstract: Most scholars believe that price-fixing has always been a per se violation of the Sherman Act except between 1933 (when the Supreme Court’s Appalachian Coals decision dropped the per se rule) and 1940 (when the Socony-Vacuum decision re-instituted it). It is also widely believed that the per se rule ignored “reasonableness” until BMI (1979). However, that’s all wrong: the efficiency that the district court found in Appalachian Coals means that Appalachian Coals was actually a rule of reason case (so it did not affect the per se rule) and Socony’s approval of Appalachian Coals means that Socony’s per se rule applied only to cases where courts had already concluded that “reasonableness” could not explain the defendant’s behavior. Thus, the efficiency that the Appalachian Coals district court found means that all these cases had the same standard, and “reasonableness” was always a factor, at least until Maricopa (1982) misread Socony and stepped away from “reasonableness” for the first time.

Date: 2011
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