Per Se Treatment: An Unnecessary Relic of Antitrust Litigation

This Note examines the erosion, as demonstrated by the Supreme Court's recent opinion in Leegin, of remaining per se illegal categories of antitrust law in favor of a more detailed analysis of each agreement. This trend has allowed procompetitive justifications for each agreement to be heard, even those traditionally held to be per se illegal. Numerous petitions before the Court urge it to scale back or even eliminate the remaining per se illegal categories under of the Sherman Act. Such a trend has become appropriate because the remaining per se agreements can actually have some procompetitive justifications in a more complex, international marketplace whereby consumer benefits are increased, prices are decreased, and innovation is encouraged. This Note scrutinizes the remaining per se agreements, pointing out the potential procompetitive justifications. The writing on the wall indicates that the current tendency of the Court is to continue eroding the remaining per se illegal categories, in favor of a rule-of-reason or quick-look analysis thereby potentially eliminating per se treatment altogether.