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The Rule of Reason and the Per Se Concept: Price Fixing and Market Division, 74 Yale Law Journal 775 (1965)


The purpose of this article is to develop, primarily in the context of price- fixing and market-division agreements, a general theory of the appropriate roles and criteria of the rule of reason and the per se concept in the decision of antitrust cases concerning the elimination of competition between agreeing parties.

This article contains two major sections. The first attempts, through an examination of key cases, to identify the main themes of policy and of economic reasoning in the judicial development of the rule of reason. It also assesses the fitness for the law of the policies discerned and suggests that the sole appropriate value in this field of antitrust is the maximization of consumer want satisfaction. The article's second section attempts an economic analysis of the more common forms of price fixing and market division in an effort to suggest the considerations which should govern their legality or illegality.

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