Antitrust and the Supreme Court

By David Ramsey | Go to book overview

CHAPTER 2
The Common Law

“It may be, as suggested by the court, that local monopolies cannot
endure long, because their very existence tempts outside capital into
competition; but the public policy embodied in the common law
requires the discouragement of monopolies, however temporary their
existence should be.”

--Justice William Howard Taft
U.S. v. Addyston Pipe and Steel Co.

The Sherman Antitrust Act of 1890 was at once an ambitious piece of legislation and a product of legislative compromise. As such, its interpretation and enforcement by the courts was, at first, ambiguous and uncertain. Among the earliest opinions handed down by the Supreme Court involving the new antitrust statute, certainly the most famous was Chief Justice Fuller’s opinion in United States v. E.C. Knight Co.1 Because it refused to break up the virtual monopoly on manufacture of sugar at issue in the case, Fuller’s E.C. Knight opinion has often been cited as a repudiation of the policy goals of the Sherman Act, and as largely responsible for deterring more vigorous prosecution of the law by the executive branch.2 But contrary to this view of a rigid and unresponsive judiciary, William Letwin has argued that Fuller’s distinction between manufacture and commerce was not so much a refusal to enforce the Sherman Act on the part of the Court as it was an attempt to redirect the energies of government prosecutors away from certain lines of attack of dubious constitutionality—could Congress really prevent the purchase by one firm of four other firms in the same industry, city and state, without violating the constitutional principle of federalism implied in the limited scope of Congress’ commerce power to the regulation of foreign and interstate, but not intrastate,

-13-

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Antitrust and the Supreme Court
Table of contents

Table of contents

  • Title Page iii
  • Table of Contents vii
  • Acknowledgments ix
  • Chapter 1 - The Business of the Roberts Court 1
  • Chapter 2 - The Common Law 13
  • Chapter 3 - The Rule of Reason 27
  • Chapter 4 - Monopolistic Competition 43
  • Chapter 5 - Workable Competition 59
  • Chapter 6 - The Harvard School 77
  • Chapter 7 - The Chicago School 93
  • Chapter 8 - Law and Economics at the University of Chicago 111
  • Chapter 9 - Law and Economics before the Supreme Court 141
  • Chapter 10 - Post-Chicago Antitrust 159
  • Chapter 11 - Antitrust Law and the Judicial Power 175
  • Notes 181
  • Table of Cases 238
  • Bibliography 243
  • Index 267
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