The doctrine per se is a legal concept that deems certain practices illegal without needing to investigate intentions. It is commonly applied to antitrust violations, such as price fixing, and malpractice. The purpose of antitrust laws is to ensure fair competition in the marketplace. The doctrine per se is not only found in the US, but also in other countries with their own laws and regulations against unfair trade.
Doctrine per se is a legal concept which holds that some activities are so contrary to acceptable practices that courts may consider them illegal without the need to inquire into the offending party’s intentions. Malpractice and antitrust laws are the most common situations where the doctrine per se applies. Price fixing is a prime example of antitrust violation using doctrine per se. Malpractice per se provides for the assumption of negligence if a defendant violated state laws intended to ensure safety. In short, the doctrine itself follows the belief that certain practices are wrong by their very nature and a person or entity practicing such methods should instinctively know that the practice is wrong and is therefore guilty and responsible for the resulting harms.
Most often, the concept of doctrine per se is applied to business environments where antitrust laws apply. The Sherman Antitrust Act of 1890, commonly referred to as the Sherman Act, severely limits monopolies in the United States. Collectively, the Sherman Act and other antitrust laws are known as competition law. Under these laws, companies cannot unfairly restrict trade in a particular industry by fixing prices or intentionally destroying competition by unfair or unreasonable means. The purpose of the Sherman Act and other antitrust laws is to ensure fair competition in the marketplace for the protection of consumers and the economy as a whole.
Serious antitrust violations, they do not require a judicial inquiry to establish their illegality. Similarly, a company’s or industry’s intentions in terms of antitrust violations by themselves are irrelevant. If a company, group of companies or the industry as a whole engages in such practices that are deemed serious violations of antitrust laws, the practice is automatically considered illegal under the doctrine per se. Examples of antitrust violations involving the doctrine per se include the deliberate manipulation of market prices for profit, known as price fixing, the creation of exceptionally high barriers to entry for certain investors, and the willful monopoly of a industry to the detriment of consumers.
Competition law and the concept of doctrine itself are not found only in the United States. Many countries have their own body of laws and regulations in place against unfair trade. European countries, as members of the European Union, have the Treaty of Rome, while Australia has the Trade Practices Act. In these countries and unions, the doctrine itself takes the form of concepts such as legal certainty and predictability of results. Under these concepts, the same understanding per se applies, as certain activities have an easily predictable outcome of being in violation of antitrust laws.
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