Antitrust and the Supreme Court

By David Ramsey | Go to book overview

CHAPTER 5
Workable Competition

“The most serious problems of imperfect competition seem…to center
in the fact that the immediate short-run pressures are out of harmony
with the conditions of long-run equilibrium. And the starting-point of a
search for the conditions of workable competition seems to be the
search for ways and means of reducing these discrepancies, under the
conditions usually encountered.”

--J.M. Clark
“Toward a Concept of Workable Competition”

Edward Corwin was one of the first students of American constitutional law to note the significance of the reversal marked by the Court’s decision in National Labor Relations Board v. Jones and Laughlin Steel Corporation.1 In a series of lectures given in 1941 at Claremont College, Corwin argued that this case, along with others decided in the same term and found in Volume 301 of the United States Supreme Court Reports, had but “a single counterpart in the Court’s annals,” that being the 11th Volume of Peters’s Reports, “wherein is recorded the somewhat lesser revolution in our constitutional law precisely 100 years earlier, which followed upon Taney’s succession to Marshall.” 2 Having essentially destroyed the framework of the first New Deal by declaring its keystone, the National Industrial Recovery Act (NIRA), unconstitutional only two years before in the Schechter Poultry3 case, the Court now changed direction completely and ruled in favor of one of the Administration’s most prominent efforts to regulate the national economy through an expansive construction of the commerce and general welfare clauses. For Corwin, the Court’s new pragmatic approach toward the legislation of the second New Deal was nothing less than a revolution in constitutional principles, one which would

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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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