From Peckham to White: economic welfare and the rule of reason

In his pronouncement of the rule of reason in the Standard Oil decision 1 Justice White maintained that there was no fundamental difference between his rule and the construction given to the Sher man Act more than a decade earlier by Justice Peckham. The rule of reason and Peckham’s test of direct and indirect restraint were ultimately “one and the same thing.” 2 Such a claim provoked a bitter dissent from Justice Harlan, 3 who found White’s assertion to be as surprising as “a statement that black was white or white was black.” 4 Harlan’s interpretation of the Peckham rule was that every restraint of interstate trade was unlawful independent of its reasonableness. White’s pronouncement of the rule of reason, Harlan charged, was clearly a blatant act of judicial legislation. 5