SCOTUS is about to hear the easiest antitrust case ever

By Jonathan M. Barnett

Antitrust law is notorious for its hard questions. Enacted in 1890, the Sherman Act prohibits “restraints of trade” and the meaning of that cryptic phrase still remains unresolved. Yet, there has never been any serious debate as to the illegality of one type of restraint: horizontal price-fixing.

The “per se” rule against this practice reflects the virtual absence of uncertainty concerning its harmfulness. That rule enables plaintiffs to prove a violation by demonstrating the existence of a cartel, without showing harm and without having to rebut countervailing justifications.

This is a powerful driver behind the antitrust laws’ ability to deter activity that so obviously distorts the market-pricing mechanism.

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