PLAN OF THE BOOK
Economic law is a policy tool, and a policy tool must be wielded with an
eye to social objectives. Economic development has been at the center of the
American national experience. The burden of proof is on the analyst who would
substitute a norm other than growth as the guiding principle of American lawmaking, particularly in the area of economic policy. The relationship between
economic law and the American growth system, then, defines the necessary
ground of our analysis. A quick reprise of the history of the American growth
system, going back to a time well before the framing of modern economic law,
would therefore provide an appropriate backdrop.
Antebellum history, the subject of Chapter 1, not only reveals the essential
features of the American growth system, but also shows how the price mechanism fits into the larger structure. Chapter 2 updates the story by showing how
Big Business threatened to damage the workings of the price mechanism, and
just how the populists in uneasy league with the progressives sought to ensure
a regime of competitive pricing through the institutions of antitrust law and rate
regulation. Chapters 3 through 5 deal with the main contending orientations in
post-World War II economic law. In Chapter 6 and the Epilogue, we gather
up the foregoing themes and make specific policy and institutional recommendations.
See Allan Nevins, Study in Power: John D. Rockefeller, Industrialist and Philanthropist, 2 vols. ( New York: Scribner, 1953), vol. 1, intro. 21.
Munn v. Illinois, 94 U.S. 113, 126 ( 1877). Ten years after the Munn decision,
Congress enacted the Interstate Commerce Commission Act, the initial entry by the
U.S. federal government into what would become rate regulation. Act of Feb. 4, 1887,
ch. 323, 24 Stat. 379 (codified as amended in scattered sections of 49 U.S.C.).
Act of Oct. 15, 1914, ch. 323, 38 Stat. 730 (codified as amended at 15 U.S.C.
§§ 12-27 [ 1982]).
Act of Sept. 26, 1914, ch. 311, § 1, 38 Stat. 717 (codified as amended at 15
U.S.C. § 41 [ 1982]). In 1938, the FTC Act was amended to ensure a strong proconsumer role for the agency. Act of Mar. 21, 1938, ch. 49, § 3, 52 Stat. 111 (codified
as amended at 15 U.S.C. § 45 [ 1982 & Supp. V 1987]).
See Lawrence Goodwyn, The Populist Moment: A Short History of the Agrarian
Revolt in America ( New York: Oxford University Press, 1978), esp. intro. 2; Louis M. Hacker
, The World of Andrew Carnegie, 1865-1901 ( Philadelphia: Lippincott, 1967), 166-86; and Steven Hahn and
Jonathan Prude, The Countryside in the Age of Capitalist
Transformation: Essays in the Social History of Rural America (Chapel Hill, N.C.: University of North Carolina Press, 1985).
The analysis of progressivism in these pages generally follows that of Samuel P. Hays
in Conservation and the Gospel of Efficiency: The Progressive Conservation
Movement, 1890-1920, 2d ed. ( New York: Atheneum, 1978), preface. See also for
statements of the urban theme, Richard M. Abrams, ed., The Issues of the Populist andProgressive Eras, 1892-1912