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What Is per Se Doctrine?

Sandi Johnson
Sandi Johnson

Per se doctrine is a legal concept that maintains that certain activities are so contrary to acceptable practices that courts may deem them illegal without the need for inquiring into the offending party’s intentions. Negligence and antitrust laws are the most common situations where per se doctrine applies. Price fixing is a primary example of antitrust violation using per se doctrine. Negligence per se provides for the assumption of negligence if a defendant violated state statutes meant to ensure safety. In short, per se doctrine follows the belief that certain practices are wrong by their very nature and a person or entity practicing such methods should instinctively know the practice is wrong and is therefore culpable and liable for ensuing damages.

Most often, the concept of per se doctrine is applied to business environments where antitrust laws apply. The Sherman Antitrust Act of 1890, commonly referred to as the Sherman Act, severely limits monopolies in the United States. Collectively, the Sherman Act and other antitrust laws are known as competition law. Under these laws, companies cannot unfairly restrict trade in a particular industry through price fixing or intentionally destroying competition by unfair or unreasonable means. The purpose of the Sherman Act and other antitrust laws is to ensure fair competition in the marketplace for the protection of consumers and the economy as a whole.

Businesswoman talking on a mobile phone
Businesswoman talking on a mobile phone

Severe antitrust violations, do not require a court inquiry to establish their illegality. Likewise, a business or industry’s intentions in terms of per se antitrust violations are irrelevant. If a business, group of businesses, or industry as a whole carries on such practices deemed as gross violations of antitrust laws, the practice is automatically considered illegal via per se doctrine. Examples of antitrust violations involving per se doctrine include deliberately manipulating market prices for profit, known as price fixing, creating exceptionally high barriers to entry for certain investors, and intentionally monopolizing an industry to the detriment of consumers.

Competition law and the concept of per se doctrine are not found solely in the United States. Many countries have in place their own body of laws and regulations against unfair trade. European countries, as members of the European Union, have the Treaty of Rome, while Australia has the Trade Practices Act. In these countries and trade unions, per se doctrine takes the form of concepts such as legal certainty and predictability of outcomes. Under these concepts, the same understanding of per se applies, in that certain activities have an easily predictable outcome of being in violation of antitrust laws.

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