In
US law
The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the supreme law is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...
, 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'' (knowledge) or other defenses. Acts are made illegal ''per se'' by
statute
A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
,
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.
When these pri ...
or
case law
Case law, also used interchangeably with common law, is a 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 in ...
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.
BAC is expressed as mass of alcohol per volume of blood. In US and many i ...
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 (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, 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)
Per Se is a New Amer ...
'' 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 ensure businesses do not engage in competitive practices that harm other, usually smaller, businesses or consumers. ...
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 l ...
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...
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 turn on question ...
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, 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 ...
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 (economics), market in which vendor (supply chain), vendors offer goods (economics), goods and service (economics), services ''specific'' to an Industry (economics), industry, trade (occupation), trade, profession, o ...
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, individ ...
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 law, a presumption is an "inference of a particular fact". There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions. A rebuttable presumption will either shift the burden of production (requir ...
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
(plural ) is a Latin phrase meaning or . The phrase is used to refer to conduct assessed as sinful, contradictory to natural law or inherently wrong by nature, independent of regulations governing the conduct. It is distinguished from , which ...
''
*
Negligence ''per se''
*
Presumption
In law, a presumption is an "inference of a particular fact". There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions. A rebuttable presumption will either shift the burden of production (requir ...
*
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 pos ...
*
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 require ...
References
{{Reflist
Competition law
American legal terminology