Rule of reason

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The rule of reason is a doctrine developed by the United States Supreme Court in its interpretation of the Sherman Antitrust Act. The rule, stated and applied in the case of Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911), is that only combinations and contracts unreasonably restraining trade are subject to actions under the anti-trust laws and that size and possession of monopoly power were not illegal.

Some of Standard Oil's critics, including the lone dissenter Justice John Marshall Harlan, argued that Standard Oil and its Rule of Reason was 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 no ill effects. These critics emphasized in particular the Court's decision in United States v. Trans-Missouri Freight, 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 merely restrained trade "indirectly." Indeed, in his 1912 book on Antitrust Law, Taft reported that he had challenged Standard Oil's critics to articulate one scenario in which the "Rule of Reason" would produce a result different from that produced under prior case law. According to Taft, no critic of Standard Oil was able to answer this challenge. Just seven years later, the Court unanimously reaffirmed the Rule of Reason in an opinion by Justice 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 announced Standard Oil, it 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 instead banned only the unreasonable acquisition and/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 Standard Oil's suggestion that courts can determine that certain restraints are unreasonable based simply upon the "nature and character" of the agreement. More recently, the United States Supreme Court has narrowed the category of restraints deemed unlawful per se, thereby subjecting a greater number of restraints to fact-based rule of reason analysis. See, e.g., Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977) (holding that courts should analyze non-price vertical restraints under the Rule of Reason); State Oil v. Khan, 522 U.S. 3 (1997) (holding that courts should evaluate maximum resale price maintenance under the Rule of Reason). See also Polk Brothers, Inc. v. Forest City Moreover, 776 F.2d 185 (7th Cir. 1985). Moreover, the U.S. Supreme Court has reaffirmed Standard Oil's conclusion that analysis under the Rule of Reason should focus on the economic, and not social, consequences of a restraint. See National Society of Professional Engineers v. United States, 435 U.S. 679 (1978). At the same time, the Supreme Court has retained the per se rule against resale price maintenance, for instance, even though many scholars argue that this practice is usually beneficial. Moreover, the Court has retained the per se rule against tying contracts, although it has 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)

The European Court of Justice (ECJ) has adopted the concept in its own jurisprudence concerning the free movement of goods within the European Common Market. The rule has arisen in the context of Article 28 (ex 30) of the Treaty of Rome, which prohibits quantitative restrictions on imports (or measures having equivalent effect). In Cassis de Dijon the ECJ drew a distinction between measures in breach of Article 28 which were indistinctly applicable as opposed to distinctly applicable. Indistinctly applicable measures are ones that, prima facie, do not favour domestic producers over importers, and whose effects are equal on both. The ECJ argued that indistinctly applicable measures that favoured domestic traders over importers were not necessarily in breach of Article 28. They could be justified if they satisfied 'mandatory' requirements - namely 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.

This proportionality exercise has itself been applied by the ECJ further than the boundaries of Article 28 would initially allow.

See also: United States Government, U.S. history

[edit] Bibliography

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).