The Transformation of Vertical Restraints: Per Se Illegality, the Rule of Reason and Per Se Legality

Abstract

This essay tracks Robert Bork’s influence on the development of vertical restraints in three areas of antitrust law - maximum resale price maintenance (“RPM”), vertical territorial restrictions, and Robinson Patman. In practice, across these areas, the shift in legal rules has not been one of per se illegality to the rule of reason but a more dramatic shift from per se illegality to one of presumptive legality under the rule of reason to close to per se legality.

Keywords: Bork, antitrust, vertical restraints, resale price maintenance, RPM, Robinson Patman, rule of reason, per se

JEL Classification: K21, l42, l40