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

Sheldon Kimmel
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Sheldon Kimmel: Economic Analysis Group, Antitrust Division, Department of Justice

No 200607, EAG Discussions Papers from Department of Justice, Antitrust Division

Abstract: Most scholars believe the Supreme Court dropped its per se rule against price-fixing in Appalachian Coals (1933), re-instituting that rule in Socony-Vacuum (1940), but that the rule ignored "reasonableness" until BMI (1979), and that Maricopa (1982) relied on Socony to step back from "reasonableness" again. However, the view that Socony's per se rule had nothing to do with "reasonableness" came from unreasonably ignoring Socony's comments on Appalachian Coals, which came from misunderstanding Appalachian Coals by ignoring the economic implications of the facts the district court found. Those implications show that Appalachian Coals, Socony, and BMI all gave the same price-fixing rule.

Pages: 21 pages
Date: 2006-03
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