With the exception of a few per se rules, which declare a business practice illegal no matter how reasonable or justifiable it is, judges apply the “rule of reason” to §§ 1 and 2 claims under the Sherman Act. The rule of reason requires judges to consider the effects of a business practice: When the effect is likely to harm consumers, it’s unreasonable and thus banned. But when the effect is likely to help consumers, then it’s presumptively lawful unless plaintiffs show that less-restrictive alternatives exist. Even then, defendants can rebut that evidence and show why its behavior is legal and necessary.
Posted 02/8/1996 | Articles