The Internationalisation of Antitrust Policy

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Antitrust Policy and U.S. Competitiveness

Consumers, who suffered from price-fixing, were irrelevant; the wisdom of the market would protect them from exploitation.

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The second view was that cartels are thoroughly bad. It reserved the rule of reason only for judging more limited ancillary restrictions. Given these competing views, which varied from state to state, no comprehensive common law could be said to exist. But one approach was destined to win.

In , Congress took aim at the trusts with passage of the sherman anti-trust act, named for Senator john sherman R-Ohio. It went far beyond the common law's refusal to enforce certain offensive contracts. Clearly persuaded by the more restrictive view that saw great harm in restraint of trade, the Sherman Act outlawed trusts altogether. The landmark law had two sections. Section 1 broadly banned group action in agreements, forbidding "every contract, combination in the form of trust or otherwise, or conspiracy," that restrained inter-state or foreign trade.

Section 2 barred individuals from monopolizing or trying to monopolize. The Sherman Act passed by nearly unanimous votes in both houses of Congress. Although sweeping in its language, the Sherman Act soon revealed its limitations. Congress had wanted action even though it did not know what steps to take.

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Historians would later dispute what its precise aims had been, but clearly the lawmakers intended for the courts to play the leading role in promoting competition and attacking monopolization: Judges would make decisions as cases arose, slowly developing a body of opinions that would replace the confusing precedents of state courts.

For a public that expected overnight change, the process worked all too slowly. President grover cleveland's Department of Justice, which disliked the Sherman Act, made little effort to enforce it. Initial setbacks also came from the U. Supreme Court's first consideration of the statute, in United States v. Knight Co.

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Rejecting a challenge to a sugar trust that controlled over 98 percent of the nation's sugar-refining capacity, the Court held that manufacturing was not interstate commerce. This was good news for trusts. If manufacturers were exempt from the Sherman Act, then they would have little to worry about from federal antitrust regulators. The Court only began strongly supporting the use of the law in the late s, starting with cases against railroad cartels.

By , some large companies still controlled nearly 40 percent of the nation's manufacturing assets and influenced at least 80 percent of its vital industries. After the turn of the twentieth century, federal enforcement picked up speed. President theodore roosevelt's announcement that he was a "trustbuster" foreshadowed one important aspect of the future of antitrust enforcement: It would depend largely on political will from the executive branch of government.

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Roosevelt and his successor, President william howard taft, responded to public criticism over the rapid merger of even more industries by pursuing more vigorous legal action. Steady prosecution in the first decade of the twentieth century brought the downfall of trusts.

What is Antitrust Law?

In , the U. Supreme Court ordered the dissolution of the Standard Oil Company and the American Tobacco Company in landmark rulings that brought down two of the most powerful industrial trusts. But these were ambiguous victories. In Standard Oil Co. United States , U. Critics of all stripes jumped on this decision. Some feared that conservative judges would now gut the Sherman Act; others predicted a return to lax enforcement; and businesses worried that in the absence of specific unlawful restraints, the rule of reason gave courts too much freedom to read the law subjectively. Dissatisfaction brought new federal laws in The first of these was the Clayton Act, which answered the criticism that the Sherman Act was too general.

It declared four practices to be illegal but not criminal: 1 price discrimination—selling a product at different prices to similarly situated buyers; 2 tying and exclusive-dealing contracts—sales on condition that the buyer stop dealing with the seller's competitors; 3 corporate mergers—acquisitions of competing companies; and 4 interlocking directorates—boards of competing companies, with common members.

Quick to hedge its bets, the Clayton Act qualified each of these prohibited activities. They were only illegal where the effect "may be substantially to lessen competition" or "might tend to create a monopoly. Despite specifying different tests for violations, Congress still wanted the courts to make the difficult decisions. One important limitation was added: The Clayton Act exempted unions from the scope of antitrust law, refusing to treat human labor as a commodity.

The Internationalisation of Antitrust Policy

The second piece of federal legislation in was the Federal Trade Commission Act. Without attaching criminal penalties, the law provided that "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce are hereby declared illegal. Lawmakers who feared judicial hostility to the Sherman Act saw the FTC as a body that would more closely follow their preferences.

Originally, the commission was designed to issue prospective decrees and to share responsibilities with the Antitrust Division of the Department of Justice. Later court rulings would allow it greater latitude in attacking Sherman Act violations. These laws helped to satisfy the short-term demand for tougher, more explicit action from Congress.

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Before long, antitrust enforcement would shift with the mood of the country. As world war i and the s reversed the outlook of previous years, antitrust policy was characterized by the hands-off policies of President calvin coolidge, who declared, "The chief business of the American people is business. In this era, DOJ gave more attention to promoting fairness than it did to attacking restrictive practices and monopoly power. Although activities such as price-fixing still came under attack, other kinds of business cooperation flourished and even received official encouragement during the early years of the new deal.

This pattern lasted for a good 15 years, intensifying after the stock market crash of Following what historians called the era of neglect, antitrust made a resurgence.

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Supreme Court struck down President franklin d. The decision radically affected New Deal —era policy. The following year, Congress passed the Robinson-Patman Act in an attempt to make sense of the Clayton Act's bans on price discrimination. The Robinson-Patman Act explicitly forbade forms of price discrimination, in order to protect small producers from extinction at the hands of larger competitors. By , economic decline brought federal antitrust enforcement back with a vengeance, as Roosevelt's administration began an extensive investigation into monopolies.

The effort resulted in more than 80 antitrust suits in alone. One federal court case in this period, United States v. Aluminum Co. Since the s, the U. Supreme Court had looked skeptically on the role of a business's size in judging monopoly cases. In United States v. United States Steel Corp. It, we repeat, requires overt acts. Rather than focus on abusive business conduct, Alcoa emphasized the role of market power.

Judge learned hand wrote for the court, "Many people believe that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone. Congress added its last piece of important legislation in with the Celler-Kefauver Antimerger Act, addressing a weakness in the Clayton Act. Because only anticompetitive stock purchases had been forbidden, businesses would circumvent the Clayton Act by targeting the assets of their rivals.

Supreme Court decisions had also undermined the law by allowing businesses to transfer stock purchases into assets before the government filed a complaint. The Celler-Kefauver amendment closed these loopholes. Vigorous enforcement of antitrust legislation created an immense body of case law. After , U. Supreme Court decisions did more than anything else to shape antitrust doctrine.

Two competing outlooks emerged. One regarded markets as fragile, easily distorted by private firms, and readily correctable through public intervention. Economic efficiency mattered less, in this view, than the belief in the antitrust doctrine's ability to meet social and political goals. Opponents saw business rivalry as being generally healthy.

They doubted that public intervention could cure defects, and they emphasized the self-correcting ability of markets to erode private restraints and private power. This outlook opposed the use of antitrust measures except to stop behavior that clearly harms the efficiency of business. The most aggressive doctrine was developed under Chief Justice earl warren.

The warren court often saw the need for decentralized social, political, and economic power, a goal that it put ahead of the ideal of economic efficiency. Brown Shoe also reflected the Court's hostility toward vertical restraints i. This aggressive approach peaked in in United States v. Arnold concerned nonprice vertical restraints i. The majority ruled that such restraints were per se illegal—in other words, so harmful to competition that they need not be evaluated.

In ensuing years, respected antitrust experts, such as Chief Judge richard posner of the U. Court of Appeals for the 7th Circuit, criticized the Court's use of "per se" tests to invalidate vertical price agreements between competitors or between sellers and buyers, arguing that such agreements can be efficient. The U.

Supreme Court heeded this criticism in State Oil Co.

The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy
The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy
The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy
The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy
The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy
The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy
The Internationalisation of Antitrust Policy The Internationalisation of Antitrust Policy

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