IN THE CLASH BETWEEN THE VENERABLE PER SE RULE AND THE CONSTITUTION, THE CONSTITUTION SHALL PREVAIL (IN TIME)

By Robert E. Connolly¹

"A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But, the tumult soon subsides. Time makes more converts than reason." Thomas Paine: Common Sense (1776).

I. INTRODUCTION

A challenge to the per se rule stalled recently when the Supreme Court denied certiorari in a petition to find the per se rule unconstitutional in criminal antitrust cases.² The appeal pitted one of the longest standing principles in antitrust law, the per se rule, against the constitutional rights of a criminal defendant to have a jury find the defendant guilty of every element of the offense beyond a reasonable doubt. The per se rule has long dictated that certain agreements (price fixing, bid rigging, and market allocation) are presumed to be an illegal restraint of trade and, even in a criminal case, the jury cannot consider whether the alleged agreement was reasonable.³ More recent Supreme Court decisions interpreting the 5th and 6th amendment,⁴ however, hold that conclusive presumptions deprive the defendant of his right to have the jury find every element of an offense beyond a reasonable doubt.⁵ The per se rule is one of those principles that has so long been accepted, the mind balks at thinking it wrong. But a constitutional protection trumps the storied history of the per se rule and one day, but not just yet, the per se rule will fall.