The Economic Foundations and Implications of the Per Se Rule

Abstract

The per se rule is born out of the intrinsically economic consideration as to the optimal allocation of scarce judicial resources. The problem with any rule or rationing scheme is that while it may conserve judicial resources, it could also foreclose meritorious defenses. We examine the welfare failures of some simple rationing schemes to uncover the premise underlying the per se rule’s summary condemnation of certain conduct. Through illustrative examples, we then demonstrate that even when its indicia are met, an overly mechanical application of the per se rule that impedes a meritorious defense can lead to the perverse misallocation of judicial resources. Prudence is thus critical when invoking the per se rule.