The U.S. Supreme Court has employed the per se standard for illegality of tying arrangements under antitrust laws for some sixty years. The tying arrangement, once reviled by the House of Representatives as "one of the greatest agencies and instrumentalities of monopoly ever devised by man," is now understood by many to have potentially redeeming, as well as condemning, qualities. As a result, scholars and judges alike have decried the per se standard as ineffective and called for its abandonment. However, the Supreme Court continues to endorse the per se standard when assessing tying arrangements. The Seventh Circuit, like other circuits, has struggled in applying the Supreme Court's per se tying analysis; this is evident in its recent decision, Reifert v. South Central MLS Corp. While all three judges hearing the case agreed on the outcome, Judge Wood contended that the majority misstated the Supreme Court's per se analysis by adding a factor (the economic interest requirement) never recognized by the Court as a requisite for per se illegality of tying arrangements. This Comment examines and critiques the Supreme Court's per se tying standard, and assesses whether the per se test provides room for the additional factor approved by the Seventh Circuit's Reifert majority.
Paul C. Mallon Jr.,
Relaxing the Noose Around Tying Arrangements: Reifert v. South Central Wisconsin MLS Corp. Exposes Problems with the Per Se Analysis,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol2/iss2/3