Editing Sherman Antitrust Act (section)

===Violations "per se" and violations of the "rule of reason"===
Violations of the Sherman Act fall (loosely<ref>The truth is that our categories of analysis of anticompetitive effect are less fixed than terms like 'per se', 'quick look', and 'rule of reason' tend to make them appear. We have recognized, for example, that 'there is often no bright line separating per se from rule of reason analysis,' since 'considerable inquiry into market conditions' may be required before the application of any so-called 'per se' condemnation is justified. [[Cal. Dental Association v. FTC]] at 779 (quoting NCAA, 468 U.S. at 104 n.26). "Whether the ultimate finding is the product of a presumption or actual market analysis, the essential inquiry remains the same whether or not the challenged restraint enhances competition." 526 U.S. at 779–80 (quoting NCAA, 468 U.S. at 104).</ref>) into two categories:

* '''Violations "per se":''' These are violations that meet the strict characterization of Section 1 ("agreements, conspiracies or trusts in restraint of trade"). A per se violation requires no further inquiry into the practice's actual effect on the market or the intentions of those individuals who engaged in the practice. Conduct characterized as unlawful per se is that which has been found to have a {{"'}}pernicious effect on competition' or 'lack[s] ... any redeeming virtue{{'"}}<ref>{{ussc|name=Continental T.V., Inc. v. GTE Sylvania Inc.|link=|volume=433|page=36|pin=58|year=1977}} (quoting {{ussc|name=Northern Pac. Ry. v. United States|link=|volume=356|page=1|pin=5|year=1958}}).</ref> Such conduct "would always or almost always tend to restrict competition and decrease output".<ref>{{ussc|name=Broadcast Music, Inc. v. CBS|link=|volume=441|page=1|pin=19–20|year=1979}}.</ref> When a per se rule is applied (in contrast to a rule of reason analysis), a civil violation of the antitrust laws is found merely by proving that the conduct occurred and that it fell within a per se category.<ref>{{ussc|name=Jefferson Parish Hosp. Dist. No. 2 v. Hyde|link=Jefferson Parish Hospital District No. 2 v. Hyde|volume=466|page=2|pin=|year=1984}}; ''[[Gough v. Rossmoor Corp.]]'', [https://law.justia.com/cases/federal/appellate-courts/F2/585/381/424532/ 585 F.2d 381], 386–89 (9th Cir. 1978), cert. denied, {{ussc|440|936|1979|el=no}}; see {{ussc|name=White Motor v. United States|link=|volume=372|page=253|pin=259–60|year=1963}} (a per se rule forecloses analysis of the purpose or market effect of a restraint); ''Northern Pac. Ry.'', 356 U.S. at 5 (same).</ref> Conduct considered unlawful per se includes horizontal price-fixing,<ref>{{ussc|name=United States v. Trenton Potteries Co.|link=|volume=273|page=392|pin=397–98|year=1927}}.</ref> horizontal market division,<ref>''Continental T.V.'', 433 U.S. at 50 n. 16 (limiting {{ussc|name=United States v. Topco Assocs.|link=|volume=405|page=596|pin=608|year=1972}} by making vertical market division rule-of-reason analysis).</ref> and concerted refusals to deal.<ref>{{ussc|name=FTC v. Superior Court Trial Lawyers Ass'n|link=|volume=493|page=411|pin=|year=}} for collusive effects and {{ussc|name=NW Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co.|link=|volume=472|page=284|pin=|year=1985}} for exclusionary effects.</ref>
* '''Violations of the "rule of reason":''' A totality of the circumstances test, asking whether the challenged practice promotes or suppresses market competition. Unlike with per se violations, intent and motive are relevant when predicting future consequences. The rule of reason is said to be the "traditional framework of analysis" to determine whether Section 1 is violated.<ref>''Continental T.V.'', 433 U.S. at 49. The inquiry focuses on the restraint's effect on competition. {{ussc|name=National Soc'y of Professional Eng'rs v. United States|link=|volume=435|page=679|pin=691|year=1978}}.</ref> The court analyzes "facts peculiar to the business, the history of the restraining, and the reasons why it was imposed",<ref>''National Soc'y of Professional Eng'rs'', 435 U.S. at 692.</ref> to determine the effect on competition in the relevant product market.<ref>See ''Continental T.V.'', 433 U.S. at 45 (citing {{ussc|name=United States v. Arnold, Schwinn & Co.|link=|volume=388|page=365|pin=382|year=1967}}), and geographic market, see {{ussc|name=United States v. Columbia Steel Co.|volume=334|page=495|pin=519|year=1948}}.</ref> A restraint violates Section 1 if it unreasonably restrains trade.<ref>''Continental T.V.'', 433 U.S. at 49; see {{ussc|name=Standard Oil Co. v. United States|link=|volume=221|page=1|pin=58|year=1911}} (Congress only intended to prohibit agreements that were "unreasonably restrictive of competitive (conditions").</ref>
**'''Quick-look:''' A "quick look" analysis under the rule of reason may be used when "an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets", yet the violation is also not one considered unlawful per se.<ref>''Cal. Dental Ass'n'', 526 U.S. at 770.</ref> Taking a "quick look", economic harm is presumed from the questionable nature of the conduct, and the burden is shifted to the defendant to prove harmlessness or justification. The quick-look became a popular way of disposing of cases where the conduct was in a grey area between illegality "per se" and demonstrable harmfulness under the "rule of reason".