Washington Law Review


Edward Brunet


Against a backdrop of a definitional skepticism, this article focuses on the important Burger Court contribution to the per se and rule of reason approaches. The Burger Court now requires a facial examination of antitrust restraints that may improve the lethargic process of antitrust litigation. Much of the article concerns the differences between the per se and rule of reason tests. The Burger Court's decisions, however, require that careful attention be given to the similar and complementary features of the rule of reason and per se methods. The article examines carefully the methodologies courts employ to classify alleged restraints as either per se or rule of reason and concludes that the line between these two approaches is becoming increasingly fuzzy. Rather than presenting two radically different antitrust tests, the Burger Court's use of the per se and rule of reason tests emphasizes similar concerns. The chief focus of this article, then, is antitrust procedure and, in particular, close scrutiny of the process used by the Burger Court to classify a restraint as either per se or rule of reason. Antitrust procedure has been the subject of intense critical commentary. Antitrust cases are often termed dinosaurs and assumed to be impossible to streamline meaningfully. Recent Burger Court opinions, however, could revolutionize the past cumbersome progress of antitrust cases. Part I of this article attempts to discredit and deemphasize often articulated but somewhat empty judicial cliches used to classify alleged antitrust restraints. Part II develops the Burger Court theme of a "quick look" or facial examination of alleged restraints that derives primarily from four opinions of Justice John Paul Stevens. Part II focuses on the blurring similarity of modem antitrust treatment of the rule of reason and per se approaches. Part III, the conclusion, explores important judicial administration policy implications of the Burger Court's treatment of the per se - rule of reason distinction. The quick look test encourages increased and efficient use of pre-trial disposition of the threshold issue of whether to use a per se or rule of reason approach.

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