ANTITRUST POLICY: THE UNITED STATES EXPERIENCE1
JOHN PERRY MILLER
Yale University, New Haven, Conn., U.S.A.
Antitrust policies in the United States reflect as much a deep seated and persisting suspicion of the social and political consequence of positions of unchecked economic power as they do a belief in the economic beneficence of competition.2 The Sherman Antitrust Act of 1890 followed a quarter century of discussion of the abuses of the growing large scale firms of the Post-Civil War period. Prior to the Civil War industry had been predominantly local in character. Corporate charters were granted sparingly, if increasingly, first by individual acts of the state legislatures and later under state enabling statutes providing for the grant of corporate charters to limited classes of industries.3 The behavior of business firms was limited and regulated, often very substantially, by the state legislatures and sometimes by the corporate charter itself.4 It was not until the Post-Civil War period that easy incorporation became freely available under state laws to any group who would go through simple routine procedures. With the passage of general incorporation statutes by the several states the corporate charter served less and less as an instrument of regulation. The growth of large firms engaged in business transcending the boundaries of a single state substantially weakened the effectiveness of state efforts to control business activities and led to a shift from state to federal controls over business. The development of large trusts, often controlling a substantial share of their respective markets, raised a challenge to deeply ingrained concepts of democracy, to the American preference for a dispersion of power, to the prevailing belief in equality of opportunity and to the contemporary sense of fair play.5 The growth of large firms had often been accomplished at the expense of small, "independent" firms. In some cases such firms had been merged or consolidated with the large firms voluntarily and on terms favorable to the former