Readers will likely agree that the legal concept of "per se" can be confusing at first.
This article promises to clearly explain everything you need to know about per se - from its origins and key principles to how it's applied in different legal contexts today.
You'll learn the precise definition of per se, how it differs from related concepts like pro se, the core elements that constitute negligence per se, where per se rules apply vs. the rule of reason, key arguments for and against the use of per se rules, and more. Real-world examples and case studies showcase per se in action across antitrust, personal injury, DUI, and defamation law.
Introduction to Per Se Legal Concept
The Latin phrase "per se" translates to "by itself" or "in itself". In legal terminology, per se refers to something that is inherently illegal regardless of intent or surrounding circumstances.
The per se rule creates strict liability for certain acts. If something is illegal per se, a plaintiff does not need to prove intent, negligence or causation - the act itself is sufficient to establish liability.
Understanding Per Se as a Legal Noun
Per se is used as a noun in legal contexts to refer to a standard or rule that makes an action illegal in and of itself. If a statute or regulation designates something as illegal per se, it establishes strict liability for violations regardless of the intent, knowledge, or surrounding circumstances of the violator.
For example, price fixing agreements between competitors are illegal per se under antitrust laws. Plaintiffs do not need to prove that the agreements unreasonably restrained trade or had anticompetitive effects in the market. The violation itself establishes liability.
Tracing the Per Se Origin and Evolution
The per se concept traces back to English common law principles of strict liability for certain dangerous activities. Over time, legislators and regulators have designated more actions as illegal per se through statutes and regulations across different legal areas.
Modern application of per se rules is seen prominently in areas like antitrust and unfair competition, where certain collusive or anticompetitive behaviors are designated illegal in themselves regardless of actual market impact.
The evolution of per se rules reflects policy decisions to create stronger deterrence for acts deemed socially unacceptable or too risky. However, critics argue per se rules can also punish benign behaviors and stifle innovation.
Key Principles of Per Se
Three key principles underlie per se rules in law:
- Strict liability - no proof needed of intent, fault, or actual harm
- Clear, unambiguous prohibitions - per se categories narrowly defined
- Tradeoff of over-deterrence for efficiency and administrability
Per se rules aim to promote compliance by removing intent requirements and evidentiary burdens for plaintiffs. However, due to strict liability, per se can also punish reasonable or beneficial behaviors.
Differentiating Per Se and Pro Se Meaning in Law
In legal contexts, "per se" and "pro se" are often confused but have distinct meanings:
- Per se means "in itself" and establishes strict liability.
- Pro se means "for oneself" and refers to parties representing themselves in court without an attorney.
So while someone can argue a per se case pro se, the two phrases have very different definitions and applications in law.
What does per se mean in legal terms?
Per se is a Latin phrase that means "through itself" or "by itself." In legal contexts, per se refers to something that is inherently or patently unlawful without having to prove all the elements of a cause of action.
For example, certain antitrust violations are illegal per se. This means that if the conduct is proven to have occurred, there is no defense - the conduct itself is inherently unlawful. In contrast, violations judged under the "rule of reason" standard require analysis of the market context to determine if the conduct unreasonably restrained trade.
The negligence per se doctrine in tort law establishes negligence automatically if the defendant violated a statute or regulation. Without needing to prove breach of duty and standard of care, the plaintiff only needs to prove:
- The defendant violated a statute or regulation
- The defendant's violation caused the plaintiff's injury
- The injury is of a type intended to be prevented by the statute
So by proving the violation, the plaintiff has inherently proven negligence on the part of the defendant.
Implied consent laws also utilize the per se standard. These laws imply a driver consents to chemical testing if arrested on suspicion of driving under the influence (DUI). By virtue of operating a vehicle in the state, the driver inherently consents to such testing.
In defamation torts, statements that are libelous per se do not require proof of special damages. The statements themselves are so inherently damaging that damage is presumed.
The per se standard establishes inherent unlawfulness or liability based on the conduct itself, without needing to prove additional elements. It is a key legal doctrine applied in areas like antitrust, negligence, and defamation.
What are the 3 elements of negligence per se?
Negligence per se has three key elements that must be met for a finding of liability:
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The defendant violated a statute or regulation designed to protect people from harm. There must be a law or regulation that establishes a standard of care, and the defendant must have breached this duty owed to the plaintiff. Examples include traffic laws, safety regulations, building codes, etc.
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The violation was a proximate cause of the plaintiff's injuries. There must be a direct causal connection between the defendant's violation of the statute and the plaintiff's injuries. The breach of duty must have played a significant role in bringing about the harm suffered.
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The harm suffered was the type of harm the statute was designed to prevent. The purpose of the statute must have been to protect the class of persons to which the plaintiff belongs from the type of accident that occurred. For example, a DUI law aims to prevent drunk driving accidents and related injuries.
So in summary, the 3 elements are: (1) violation of a statute establishing a standard of care, (2) the violation caused the plaintiff's injury, and (3) the injury resulted from the kind of hazard the statute sought to prevent. When these elements are met, the defendant's conduct is considered negligent per se.
What is a per se rule?
A per se rule is a legal concept that establishes strict liability for certain acts, regardless of intent or other circumstances. It is a generalized rule applied without consideration for specific details of a case.
For example, price fixing agreements between competitors are illegal per se under antitrust laws. Companies can be held liable for price fixing without any investigation into their intent or the effects on the market. The act itself is prohibited.
Some key things to know about per se rules:
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They establish automatic liability for acts deemed inherently harmful by statute or common law doctrine. No excuses or defenses are allowed.
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Most apply to violations of antitrust, criminal, and tort laws. Price fixing, bid rigging, and defamation are common examples.
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Courts create per se rules to promote judicial efficiency and consistency. Investigating intent or effects can be extremely complex.
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Violations require no proof of intent, injury, market power, or reasonableness. The act itself infringes the law.
So in summary, a per se rule sets forth behavior that is so obviously harmful it is considered illegal without further analysis. It creates strict liability to streamline enforcement and litigation.
What are illegal per se laws?
Illegal per se laws refer to acts that are inherently illegal without needing to prove intent, knowledge, or other defenses. These laws establish that certain conduct is unlawful in and of itself.
For example, price-fixing agreements between competitors are illegal per se under antitrust laws. Plaintiffs do not need to prove that the agreements unreasonably restrained trade or harmed competition. The conduct is considered an antitrust violation simply by its nature.
Other common examples of illegal per se laws include:
- Driving over the legal blood alcohol concentration limit for drunk driving
- Possessing illegal substances like cocaine or heroin
- Committing libel by publishing false defamatory statements
- Failing to obtain proper business licenses or permits
The policy rationale is that these acts have such a high likelihood of harming public interests that illegal intent can be assumed. However, courts apply the per se rule narrowly to only unambiguously harmful acts. Most laws use a rule of reason analysis instead.
Overall, illegal per se laws establish clear statutory standards deeming certain conduct so evidently dangerous or against public policy that it requires no further analysis to establish liability. Plaintiffs only need to prove the act itself occurred.
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Per Se in Different Legal Areas
This section will analyze applications of the per se concept across various domains of law.
Per Se Antitrust Violation: A Case Study
Per se violations in antitrust law refer to agreements or practices that are considered so inherently harmful to competition that they are illegal regardless of their actual impact on the market. Some examples include:
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Price fixing agreements between competitors to raise, lower, or stabilize prices. This is illegal regardless of whether prices were actually affected.
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Bid rigging schemes where competitors secretly agree to limit independent bidding to manipulate auction outcomes.
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Customer or market allocation agreements where competitors divide customers or geographic territories among themselves to reduce competition.
A relevant case is the United States v. Trenton Potteries Co. In that case, 20 individuals and 23 corporations in the sanitary pottery industry were accused of price fixing for multiple years. The trial court found no evidence that the agreed prices were unreasonable or injured the public. However, the Supreme Court ruled that reasonableness of prices was irrelevant under per se analysis. The agreement itself was held illegal regardless of its impact. This established precedents for modern per se rules.
Negligence Per Se in Accidents & Injuries
Negligence per se allows courts to use statutes and regulations to conclusively establish duty and breach elements in a negligence claim. If a defendant violated a statute designed to prevent the type of injury the plaintiff suffered, courts may rule negligence per se and focus analysis on actual and proximate causation.
For example, imagine a driver violated the speed limit and got into an accident injuring another motorist. Exceeding the speed limit would likely constitute negligence per se. However, the victim must still show actual causation - that speeding actually caused the collision and subsequent harm. The victim also must establish proximate cause - that speeding led to injuries a statute or ordinance was designed to prevent.
While negligence per se eases a plaintiff's burden of proof for negligence, it does not guarantee liability. Causation must still be proven.
Implied Consent Laws and DUI Per Se
Implied consent laws assume motorists consent to chemical BAC tests if lawfully arrested for DUI. Refusing a test can result in license suspension. Many states also have per se DUI statutes making it illegal to drive with a BAC exceeding a set limit like 0.08% or 0.15%, regardless of actual impairment.
For example, imagine a driver was arrested on suspicion of DUI and recorded a 0.10% BAC on a breathalyzer test. Even absent any evidence of impaired driving, they could be convicted of DUI per se given BAC exceeded the 0.08% limit. However, if the test was refused under implied consent rules, administrative license suspension would also ensue regardless of actual impairment level.
In this manner, implied consent and DUI per se laws work together to deter and penalize drunk driving through "legal fiction" of implied consent and strict liability for exceeding BAC limits.
Understanding Libel Per Se in Defamation Trials
Libel per se refers to written defamation so egregious it is considered damaging on its face, without proof of actual damages. Examples include:
- False allegations of criminal conduct or moral turpitude.
- Statements alleging a person lacks fitness or integrity to perform their occupation.
If ruled libel per se by a court, plaintiffs may seek punitive damages without proving special damages. The statement itself establishes presumption of loss. However, truth remains an absolute defense against defamation. For public officials and figures, actual malice (knowledge statements were false or reckless disregard of falsity) must still be proven even for per se libel.
In summary, libel per se creates stricter standards of liability for the most damaging types of false written statements. However, free speech protections still apply, especially regarding public figures.
Comparison to Rule of Reason
The per se rule differs from the rule of reason approach in antitrust law. While the rule of reason involves a case-by-case analysis of the procompetitive and anticompetitive effects of business conduct, the per se rule categorically deems certain conduct as unlawful.
Key Differences Between Per Se Rule and Rule of Reason
The key differences between the per se rule and the rule of reason are:
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The per se rule does not require an in-depth analysis of the conduct's impact on competition. Instead, it automatically considers certain conduct as illegal. The rule of reason involves a detailed investigation into the conduct's competitive effects.
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The per se rule is appropriate for types of conduct that are highly likely to harm competition, such as price-fixing. The rule of reason applies to conduct where the competitive impact is less clear.
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Per se violations only require proof that the conduct occurred. The rule of reason requires proof that the conduct had an unreasonable impact on competition.
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The per se rule promotes judicial efficiency by avoiding lengthy economic inquiries. The rule of reason accommodates a more thorough examination but is more resource-intensive.
Situations Better Suited to Each Approach
The per se rule works best for restraints like price-fixing cartels that predictably and almost always harm competition. The costs of a detailed analysis outweigh any potential benefits to competition.
The rule of reason fits cases where the effects on competition are dependent on market conditions. This includes vertical distribution restraints and joint ventures where efficiency gains could outweigh harms.
Rule of Reason and Per Se Rule: Balancing Standards of Tort Liability
Courts balance per se rules and the rule of reason to strike the right balance between standards for determining tort liability. Per se rules promote judicial economy but may be overinclusive, while the rule of reason allows for nuanced analyses but is resource-intensive. Courts tend to create per se rules for types of conduct that predictably cause injury. The rule of reason governs situations where the harm is less clear. This balancing of standards enables courts to efficiently handle clear-cut cases while accommodating deeper investigations when necessary.
Debate Over Use of Per Se Rules
Per se rules in law refer to strict liability standards that do not require proof of unreasonable behavior. Their use has sparked ongoing discussion around the benefits and drawbacks of such rigid approaches.
Arguments in Favor of Per Se Rules
Proponents argue that per se rules offer several advantages:
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Clarity and predictability: Per se standards provide clear guidance on what constitutes a violation of the law, removing ambiguity for all parties. This allows individuals and businesses to easily understand boundaries and change behavior accordingly.
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Efficiency: By eliminating the need to litigate questions of reasonableness or intent, per se rules streamline the legal process. Courts can adjudicate cases more quickly under strict liability.
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Deterrence: Since per se rules do not require prosecutors to demonstrate intent or negligence, they lower the legal bar for establishing violations. This deters bad faith actors by increasing expected costs of noncompliance.
Criticisms of Per Se Approach
However, critics argue that inflexible per se standards come with drawbacks:
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Overinclusiveness: Strict liability rules often capture benign behaviors not meant to be prohibited. Per se illegality negates arguments that an action was reasonable under the circumstances.
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Chills innovation: Businesses may avoid beneficial collaborations due to fear of inadvertent per se antitrust violations. Rigid standards provide limited leeway for well-intentioned experimentation.
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Erodes judicial discretion: Courts lose the ability to exercise judgement and consider nuances of each case. Equating minor technical violations with major infractions oversimplifies complex issues.
Per Se Exclusion Rule: Controversy and Considerations
The per se exclusion rule in tort law automatically excludes certain types of evidence in determining liability. Despite intended benefits, its near-blanket restrictions have proven contentious. Opponents argue the rule goes too far in limiting relevant testimony based merely on the source rather than the substance. As courts seek to balance fairness, efficiency and sound rulings, the proper role and contours of rigid per se dictates remain debated.
Per Se Rules in Practice
Per se rules establish strict liability for certain actions, regardless of intent or other circumstances. They are applied in situations where an activity is considered so inherently dangerous that imposing liability without fault serves public policy aims.
The Role of Duty and Breach in Negligence Per Se
Negligence per se arises when the defendant breaches a legal duty defined by statute, and that breach causes damages. Unlike regular negligence claims, the duty and breach elements are conclusively established if the plaintiff can prove the defendant violated a statute. The plaintiff still must establish actual and proximate causation.
For example, drunk driving laws create a legal duty not to operate a vehicle over the legal blood alcohol limit. If the defendant drives over the limit and causes an accident, they breached their duty per se. The court will instruct the jury to find the defendant negligent without considering external factors.
Cause in Fact vs. Proximate Cause: Per Se Implications
In negligence per se cases, the plaintiff must still prove actual ("cause in fact") and proximate causation. Cause in fact means the defendant's conduct was an actual cause of the plaintiff's injury. Proximate cause considers whether the injury was a foreseeable result of the negligent conduct.
For instance, if a driver runs a red light (violating a statute and breaching their duty per se) and hits a pedestrian, cause in fact is straightforward. Proximate cause asks if the collision and injuries were foreseeable outcomes when running the red light at that speed and location.
Restatement (Third) of Torts §§14 & 15: Per Se Interpretations
The Restatement (Third) of Torts helps courts interpret negligence per se issues. Section 14 states that an actor is negligent if they violate a statute designed to protect against the type of accident that occurred. Section 15 says violations of such statutes conclusively establish the actor's failure to exercise reasonable care.
So if a defendant violates a safety statute and the plaintiff suffers the type of harm the statute aims to prevent, §§14 and 15 support finding negligence per se. The court can rely on the Restatement to simplify evaluating duty, breach, and standard of care issues.
Conclusion and Key Takeaways
The per se rule is an important legal concept that establishes negligence automatically when certain statutes are violated. Understanding how it functions and its implications is key for legal professionals.
Core Principles to Remember
- The per se rule creates strict liability for violations of statutes designed to protect public safety.
- Plaintiffs must still establish factual and proximate causation between the statutory violation and injury.
- Courts determine which statutes qualify based on legislative intent and public policy considerations.
- Per se negligence sets a clear standard but can lead to unfair outcomes in some situations.
Final Thoughts on Per Se's Legal Significance
In conclusion, the per se doctrine plays a pivotal role in tort law by setting unambiguous duties of care. However, its rigid application has drawbacks in marginal cases. Courts must balance competing objectives of efficiency and fairness when applying negligence per se. Despite limitations, it remains an essential tool for regulating behavior and enabling injured plaintiffs to seek accountability.
