Antitrust in History

• Published date: 01 September 2018
• Author: Barry E. Hawk
• DOI: 10.1177/0003603X18783124
• Date: 01 September 2018

Article

Antitrust in History

Barry E. Hawk*

Abstract

The antitrust world before 1890 looks barren when compared with today’s global antitrust industry.

The most common antitrust laws in pre-modern societies condemned practices that had the perceived

tendency to raise prices: forestalling, hoarding and price fixing. Enforcement was focused on retail

markets and trade in essential foodstuffs, like grain. Laws intended to ensure fair prices are common

throughout history. Rules prohibiting unfair or excessive prices raise the more general question of

price controls in pre-industrial societies. The historical evidence is ambiguous. Laws prohibiting

monopolistic or abusive conduct are less clearly evident than anti-cartel laws in pre-industrial societies,

although a few references exist. Before the 20th century, courts and authorities lacked the tools of

modern economic analysis, like mathematics-based theories of harm. This absence of modern eco-

nomics meant that there was no clear distinction among “economic,” “social,” “moral” and “political”

policy objectives. Laws concerning product quality, consumer fraud and misrepresentations are

commonly found in pre-modern societies. Although consumer protection rules were based on notions

of fair dealing and justice, the rules were consistent with modern economic notions of transaction cost

efficiencies, asymmetric market information and imperfect market information.

Keywords

Cartels, consumer protection, fair prices, forestalling and monopolies

I. Introduction

The antitrust world before passage of the Sherman Act in 1890 looks barren when compared with the

twenty-first century’s sprawling and lucrative antitrust industry—an industry populated with tens of

thousands of lawyers, economists, and government officials associated together in global and regional

networks, like the International Competition Network (ICN) and the European Competition Network

(ECN). Older societies lacked the three pillars that support today’s public and private behemoth—

prohibition of restrictive agreements, con straint on unilateral firm conduct (monop olization), and

merger control. The most common antitrust laws in premodern societies condemned practices that

had the perceived tendency to raise prices: forestalling, hoarding and price fixing. Enforcement of

these laws focused on retail markets and trade in essential foodstuffs, like grain.

*Fordham Law School, New York, NY, USA

Corresponding Author:

Barry E. Hawk, Fordham Law School, 150 W 62nd St., New York, NY 10023, USA.

Email: bhawk1@law.fordham.edu

The Antitrust Bulletin

2018, Vol. 63(3) 275-282

ªThe Author(s) 2018

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DOI: 10.1177/0003603X18783124

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