A Rule of Reason Decision Model After Sylvania

Writing for the Supreme Court of twenty years ago in Northern Pacfc Railway v. United States,I Justice Black praised "per se" rules as sources of economy and predictability in the administration of section 1 of the Sherman Act.' He characterized economic inquiry in antitrust cases as "often wholly fruitless," while stating that rules of per se illegality not only avoid most of this "incredibly complicated and prolonged" analysis, but also provide more certainty to those concerned.3 Later, Justice Marshall expressed the Court's reluctance to "ramble through the wilds of economic theory" in United States v. Topco Associates, Inc. ,4 noting that "courts are of limited utility in examining difficult economic problems."5 In laying down a per se rule, the majority stated that the judiciary's "inability to weigh. . . destruction of compe-