Function and dysfunction of per se rules in vertical market restraints

In 1963, the Supreme Court held it did not know enough about the "economic and business stuff" out of which nonprice vertical market restraints "emerge" to determine whether they should be measured by a "rule of reason" test or one of "per se illegality.'" Seventeen years later, after one flip2 and one flop3 (or vice-versa depending on your view) by the Court and extensive academic speculation on all sides of the issue,4 only one certain conclusion remains: We do not know enough to generalize conclusively about the impact of a wide variety of vertical nonprice restraints on the preservation of a competitive process and the goals of antitrust policy, which the process seeks to achieve.