In antitrust law, the per se rule against horizontal price-fixing seems set in stone. Over time, however, antitrust enforcers and courts have declined to use this rule and instead have used the rule of reason. This change stems directly from the recognition that the per se rule's blunt application may end up harming consumers in some contexts. Using Uber as an example of a consumer-friendly, efficiencyenhancing business model, this Comment argues that using the per se rule to analyze horizontal arrangements like Uber's sacrifices consumer welfare. Instead, courts should use the rule of reason and engage in cost-benefit analysis where horizontal arrangements create unique efficiencies. This proposition necessarily demands that courts and enforcers identify "arrangement-specific" efficiencies and measure those efficiencies in a concrete way. This Comment offers only suggestions to those points. Courts lose nothing by engaging with the rule of reason's detailed framework, but society might easily lose innovative business structures that benefit consumers if courts continue to defer to the per se rule. *
Uber's Efficiencies: A Modest Proposal for Limiting Use of Antitrust's Per Se Rule,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol91/iss1/6