Illegal per se
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In
US law, the term illegal per se means that the act is inherently illegal. Thus, an act is illegal without extrinsic proof of any surrounding circumstances such as lack of scienter (knowledge) or other defenses. Acts are made illegal per se by statute, constitution or case law
.
Drunk driving
Many drunk driving laws make driving with a blood alcohol content over a certain limit (such as 0.05% or 0.08%) an act which is illegal per se.
Antitrust
In the
horizontal market arrangements among competitors
.
The illegal per se category can trace its origins in the 1898 Supreme Court case Addyston Pipe & Steel Co. v. U.S., 175 U.S. 211 (1898).
A number of cases have subsequently raised doubts about the validity of the illegal per se rule. Under modern Antitrust theories, the traditionally illegal per se categories create more of a presumption of unreasonableness.[1] The court carefully narrowed the per se treatment and began issuing guidelines. Courts and agencies seeking to apply the per se rule must:
- show "the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output";
- show that the practice is not "one designed to 'increase economic efficiency and render markets more, rather than less, competitive'";
- carefully examine market conditions; and
- absent good evidence of competitiveness behavior, avoid broadening per se treatment to new or innovative business relationships.
See also
References
- Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979); Nat's Collegiate Athletic Assn v. Board of Regents, 468 U.S. 85, 98 (1984); Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289 (1985); and FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986).