Since the International Salt and Northern Pacific cases were decided, there has been an increasing tendency to consider the use of tie-ins illegal per se under various sections of the antitrust laws. In this article Professor Austin expresses concern over this approach towards the practice. Using the recent Atlantic Refining case as a starting point, he discusses theoretical and practical difficulties raised by the use of a per se approach. The author then urges that the trend towards per se treatment be reversed, that courts in judging the legality of a tie-in look to economic realities, and that a new balancing of interests approach be adopted. To support his recommendations, he discusses leading antitrust cases which indicate confusion in the courts as to whether the practice is per se illegal. In addition, he surveys the case law on defenses available in tie-in cases.
