How and Why the Per Se Rule Against
Price-Fixing Went Wrong
Sheldon Kimmel, EAG 06-7, March 2006
Forthcoming in Supreme Court Economic Review (2008).
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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.