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
In law, (Law Latin for "knowingly", ) is a legal term for intent or knowledge of wrongdoing. An offending party then has knowledge of the "wrongness" of an act or event prior to committing it.
For example, if a man sells a car with brakes that ...
'' (knowledge) or other defenses. Acts are made illegal ''per se'' by
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
,
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these pr ...
or
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
.
Drunk driving
Many
drunk driving
Drunk driving (or drink-driving in British English) is the act of driving under the influence of alcohol. A small increase in the blood alcohol content increases the relative risk of a motor vehicle crash.
In the United States, alcohol is i ...
laws make driving with a
blood alcohol content
Blood alcohol content (BAC), also called blood alcohol concentration or blood alcohol level, is a measurement of alcohol intoxication used for legal or medical purposes; it is expressed as mass of alcohol per volume or mass of blood. For example ...
over a certain limit (such as 0.05% or 0.08%) an act which is illegal ''per se''.
Antitrust
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, illegal ''
per se
Per se may refer to:
* ''per se'', a Latin phrase meaning "by itself" or "in itself".
* Illegal ''per se'', the legal usage in criminal and antitrust law
* Negligence ''per se'', legal use in tort law
*Per Se (restaurant), a New York City restauran ...
'' often refers to categories of
anti-competitive behavior
Anti-competitive practices are business or government practices that prevent or reduce competition in a market. Antitrust laws differ among state and federal laws to ensure businesses do not engage in competitive practices that harm other, usuall ...
in
antitrust
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
conclusively presumed to be an "unreasonable restraint on trade" and thus anti competitive. The
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has, in the past, determined activities such as
price fixing
Price fixing is an anticompetitive agreement between participants on the same side in a market to buy or sell a product, service, or commodity only at a fixed price, or maintain the market conditions such that the price is maintained at a given ...
, geographic
market division
Dividing territories (also market division) is an agreement by two companies to stay out of each other's way and reduce competition in the agreed-upon territories. The process known as geographic market allocation is one of several anti-competitiv ...
, and
group boycott
In competition law, a group boycott is a type of secondary boycott in which two or more competitors in a relevant market refuse to conduct business with a firm unless the firm agrees to cease doing business with an actual or potential competitor of ...
to be illegal ''per se'' regardless of the reasonableness of such actions. Traditionally, illegal ''per se'' anti-trust acts describe
horizontal market
A vertical market is a market in which vendors offer goods and services ''specific'' to an industry, trade, profession, or other group of customers with specialized needs. A horizontal market is a market in which a product or service meets a ne ...
arrangements among
competitor
Competition is a rivalry where two or more parties strive for a common goal which cannot be shared: where one's gain is the other's loss (an example of which is a zero-sum game). Competition can arise between entities such as organisms, indivi ...
s.
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
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.
There are two ...
of unreasonableness.
[See, for example, '' 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).] 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
* ''
Malum in se''
*
Negligence ''per se''
*
Presumption
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial.
There are two ...
*
Rule of reason
The rule of reason is a legal doctrine used to interpret the Sherman Antitrust Act, one of the cornerstones of United States antitrust law. While some actions like price-fixing are considered illegal ''per se', ''other actions, such as po ...
*
Strict liability (criminal)
In criminal law, strict liability is liability for which (Law Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the ("guilty act") although intention, recklessness or knowledge may be required ...
References
{{Reflist
Competition law
American legal terminology