by Daniel Rossman*
The Supreme Court currently analyzes tying arrangements under the modified per se rule from Jefferson Parish Hospital v. Hyde. Under this standard, a court should conduct an in-depth inquiry into a firm’s market power and condemn arrangements that tie two products together. Because Jefferson Parish is a “per se” rule, defendants cannot justify their actions with procompetitive explanations. This Contribution argues that Jefferson Parish’s per se rule against tying arrangements ought to be replaced by the rule of reason for three reasons. First, the per se rule fails to consider the efficiencies that can be associated with tying. Second, contemporary understandings of tying arrangements no longer justify the per se rule. Finally, the benefit of the Jefferson Parish per se rule is undercut by its four-step framework. Instead, courts should adopt the rule of reason which would allow them to assess the potential efficiencies created through tying arrangements.