The Liberty to Trade as Buttressed by National Law/Introduction
INTRODUCTION
For nearly twenty years the national tribunals have been engaged in interpreting the Anti-Trust Act of July 2, 1890. That it has been considered deeply and earnestly by the Supreme Court is shown by the constancy and strength of dissenting opinion.
And yet, when recently asking a number of able and experienced counsel for definite opinions concerning it, they either did not feel able to reply, or did so with the greatest hesitation and difference of view.
Hastily, myself, looking at the cases, I was involved in the same conclusion. The Knight case seemed in direct conflict with the Securities case—four of the Justices thought it was; and the Anderson case with the Montague case. Yet, in later cases, all are equally cited as authority, and often for the same principle. Again: many of the cases speak of the Act as an application of the common law to "national trade" (I mean both interstate and international trade when I use this term), with additional sanctions. Others treat it as going further, but do not say why, or how much.
Then it is decided that "direct" restraints are illegal, "indirect" lawful; but that "indirect" restraints might be "inevitable," while "direct" restraints were often most circuitous. It is confusing to be told that all arrangements tending to stifle competition in national trade are direct and illegal restraints, but that, of course, a partnership that might make such competition even a fraud is, nevertheless, perfectly legal; that "unifications of interest" by complete ownership are indirect and legal, while they are also the most dangerous and illegal forms of direct restraint; that absolutely every restraint of trade is illegal, though there are many exceptions to this rule, without exception; that trade could be "reasonably" restrained, but that nothing could be more "unreasonable" than any restraint of that which is so vital to the nation; that monopolies could only emanate from sovereign authority; but that monopoly merely meant "sole sale," or that which tended to it, no matter how created, etc. Neither was there in text-book nor decision an easy and readily found answer to these apparent enigmas.
It may be that all this presents no difficulty to my brethren of the Bar, but that it did to me cannot be doubted. I am, therefore, tempted by my own difficulties and labors to write this essay, hoping that it may lighten similar ones for others should a solution prove burdensome to them also.
Pressed as I am by other duties, it is not my purpose to write a general treatise upon the subject, but merely to suggest possible solutions and explanations of some of the main difficulties of the subject including, of course, those already referred to.