Rule of reason
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The rule of reason is a legal doctrine used to interpret the Sherman Antitrust Act, one of the cornerstones of United States antitrust law. While some actions like price-fixing are considered illegal per se, other actions, such as possession of a monopoly, must be analyzed under the rule of reason and are only considered illegal when their effect is to unreasonably restrain trade. William Howard Taft, then Chief Judge of the Sixth Circuit Court of Appeals, first developed the doctrine in a ruling on Addyston Pipe and Steel Co. v. United States, which was affirmed in 1899 by the Supreme Court. The doctrine also played a major role in the 1911 Supreme Court case Standard Oil Company of New Jersey v. United States.
Upon its development some critics of Standard Oil, including the lone dissenter Justice John Marshall Harlan, argued that Standard Oil and its rule of reason were a departure from previous Sherman Act case law, which purportedly had interpreted the language of the Sherman Act to hold that all contracts restraining trade were prohibited, regardless of whether the restraint actually produced ill effects. These critics emphasized in particular the Court's decision in United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897), which contains some language suggesting that a mere restriction on the autonomy of traders would suffice to establish that an agreement restrained trade within the meaning of the Act.
Others, including William Howard Taft and Robert Bork, argued that the decision and the principle it announced was entirely consistent with earlier case law. These scholars argue that much language in Trans-Missouri Freight was dicta, and also emphasized the Court's decision in United States v. Joint Traffic Association, 171 U.S. 505 (1898), in which the Court announced that "ordinary contracts and combinations" did not offend the Sherman Act, because they restrained only trade "indirectly." Indeed, in his 1912 book on antitrust law, Taft reported that no critic of Standard Oil could succeed in Taft's challenge: to articulate one scenario in which the rule of reason would produce a result different from that produced under prior case law.
Just seven years later, the Court unanimously reaffirmed the rule of reason in an opinion by Justice Louis Brandeis, Chicago Board of Trade v. United States, 246 U.S. 231 (1918). The decision found that an agreement between rivals limiting rivalry on price after an exchange was closed was reasonable and thus did not violate the Sherman Act.
On the same day, the Supreme Court also announced United States v. American Tobacco Co., 221 U.S. 106 (1911). That decision held that Section 2 of the Sherman Act, which bans monopolization, did not ban the mere possession of a monopoly but banned only the unreasonable acquisition or maintenance of monopoly.
The rule was narrowed in later cases that held that certain kinds of restraints, such as price fixing agreements, group boycotts, and geographical market divisions, were illegal per se. These decisions followed up on the suggestion in Standard Oil that courts can determine that certain restraints are unreasonable based simply upon the "nature and character" of the agreement.
More recently, the Supreme Court has removed a number of restraints from the category deemed unlawful per se and subjected them instead fact-based rule of reason analysis. These include non-price vertical restraints in 1977's Continental Television v. GTE Sylvania, maximum resale price maintenance agreements in 1997's State Oil v. Khan, and minimum resale price maintenance agreements in 2007's Leegin Creative Leather Products, Inc. v. PSKS, Inc..
Moreover, the Supreme Court has reaffirmed the conclusion in Standard Oil that analysis under the rule of reason should focus on the economic but not the social consequences of a restraint (National Society of Professional Engineers v. United States, 435 U.S. 679 (1978)). Further, the Court retained the per se rule against tying contracts but raised the threshold showing of market power that plaintiffs must make to satisfy the rule's requirement of "economic power" (see Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1985).
Several authors have work on the creation of a "structued rule of reason" so to avoid the flaw in term of legal certainty surrounding a pure rule of reason.
The European Court of Justice (ECJ) adopted the concept in its own jurisprudence concerning the free movement of goods within the European Internal Market. The rule has arisen in the context of Article 34 and 35 TFEU (ex 29 TEC) which prohibit quantitative restrictions on imports and exports (or measures having equivalent effect). In Cassis de Dijon (Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein) the ECJ drew a distinction between measures in breach of Article 34 TFEU which were indistinctly applicable as opposed to distinctly applicable.
Indistinctly applicable measures are ones that prima facie do not favour domestic producers over importers but have effects that are equal on both. The ECJ argued that indistinctly applicable measures that favoured domestic traders over importers were not necessarily in breach of Article 34 TFEU; they could be justified if they satisfied mandatory requirements: that the measure is necessary for protecting the public or the consumer. The Rule of Reason is essentially the proposition that a proportionality exercise must be performed by the Court to determine whether the effects of Member State legislation on the free movement of goods is justified in light of the legislation's stated goals.
- Wertheime, B (1984). "Rethinking the Rule of Reason: From Professional Engineers to NCAA,". Duke Law Journal. 1984: 1297–1324.
- Richardt, Meribeth (1985). "Tying Arrangement Analysis: A Continued Integration of the Rule of Reason and the Per Se Rule: Jefferson Parish Hospital District No. 2 v. Hyde, 104 S. Ct. 1551 (1984)". Washington University Law Review. 63 (2).
- Thibault Schrepel, A New Structured Rule of Reason Approach for High-Tech Markets, Suffolk University Law Review, Vol. 50, No. 1, 2017 https://ssrn.com/abstract=2908838
- William Howard Taft, "The Antitrust Acts and The Supreme Court" (1914)
- Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division, 74 Yale L. J. 775 (1965) (Part I)
- Rudolph Peritz, "Competition Policy in America, 1888-1992" (1996)
- Albert H. Walker, "The Unreasonable Obiter Dicta of Chief Justice White in the Standard Oil Case: A Critical Review" (1911)
- Alan Meese, Price Theory, Competition, and the Rule of Reason, 2003 Illinois L. Rev. 77
- William Page, Ideological Conflict and the Origins of Antitrust Policy, 66 Tulane L. Rev. 1 (1991)
- William Letwin, Law and Economic Policy in America (1965)
- Martin Sklar, "The Corporate Reconstruction of American Capitalism, 1890-1916" (1988)
- Thomas A. Piraino, Reconciling the Per Se and Rule of Reason Approaches to Antitrust Analysis, 64 S. CAL. L. REV. 685 (1991)
- Frank H. Easterbrook, The Limits of Antitrust, 63 Texas L. Rev. 1 (1984).
- Steiner J, Woods L, "EU Law" 10th ed, Oxford: Oxford University Press (2009)
- Thibault Schrepel, "A New Structured Rule of Reason Approach for High-Tech Markets", Suffolk University Law Review, Vol. 50, No. 1, 2017