For more than a century, antitrust law has operated under two rules of analysis: rule of reason and per se. In 1984, however, the Supreme Court fabricated a new standard for a particular type of antitrust offense, referred to as the “partial per se” rule. This rule confuses and obscures the analysis taking place in tying arrangements and has no place in American jurisprudence. The rule should be abolished, and in its place, the Court should adopt the rule of reason analysis and elements suggested by Justice O’Connor in the very case from which this “partial” rule originated. By doing so, the Supreme Court will better enable lower courts to make proper decisions, prevent over-deterrence of tying arrangements, and clarify the standards that companies must meet to engage in this business practice.
No Such Thing as Partial Per se: Why Jefferson Parish v. Hyde Should be Abolished in Favor of a Rule of Reason Standard for Tying Arrangements,
Bus. Entrepreneurship & Tax L. Rev.
Available at: https://scholarship.law.missouri.edu/betr/vol3/iss2/10