Document Type


Publication Date



The application of section 1 of the Sherman Act to resale restrictions imposed by a supplier of goods requires an analysis of whether such restrictions result from an agreement and, if so, the standard applicable to the restriction. Each of these issues is a source of continuing controversy. The present position of the United States Supreme Court on the agreement issue is a product of two inappropriate influences. First, the Court has attempted to accommodate disparate interests reflected in the debate over the standards that should be applied once an agreement is proven. Second, the Court has resurrected the Colgate doctrine, that was uncertain at its inception and has since been subject to limitation and qualification. This paper argues that the agreement issue should be resolved in light of the reason for the agreement requirement. Such a resolution requires substantial amendment of the Supreme Court's present position. This paper adopts a test to determine the existence of an agreement under section 1 of the Sherman Act and an analysis follows that demonstrates its validity.