Enforcement of Anti-Trust Laws by the Courts or a Commission: A Comparison

• Author: Gilbert H. Montague
• Published date: 01 January 1930
• Date: 01 January 1930
• DOI: http://doi.org/10.1177/000271623014700123
• Subject Matter: Articles

Enforcement of Anti-Trust Laws by the Courts or a
Commission: A Comparison
1
By GILBERT H. MONTAGUE
Member, New York Bar, New York City
T WENTY-ONE years ago, referring present time, the Supreme Court has
to the Sherman Act, a New York
interpreted and applied the Sherman
judge, in the American Tobacco case
Act in a succession of notable judicial
then on its way to the Supreme Court,
decisions which forever will be one of
said in eff ect :
the glories of jurisprudence, in this and
every other country where the com-
This statute is revolutionary. It prac-
mon law rule of law through judicial
tically prevents any combination. It pre-
decision prevails.
vents the joining together of any two ex-
press men, no matter how small they may
PRESENT STATUS OF THE SHERMAN ACT
be, if they are driving rival express wagons
The courts
between villages situated in contiguous
long since have left be-
hind the belief that the Sherman Act
states.
had any such meaning as Judge La-
That is what Judge Lacombe, in
combe gave it. The Supreme Court’s
1908, said of the Sherman Act. If
interpretation and application of that
that had been true it would have meant
Law to American business during the
the absolute disintegration of business.
past eighteen years has scored the
What I shall describe briefly below is
double triumph of opening up bound-
the way in which the Supreme Court
less opportunities for wholesome de-
of the United States accepted that
velopment throughout the entire field
challenge and what the Supreme Court
of American business, and at the same
has since done about it.
time of so strengthening the safeguards
In 1927, in examining the Inter-
required in the public interest that the
national Harvester Company, which
Supreme Court of the United States
comprised over sixty percent of the in-
has now practically eliminated from
dustry, the Supreme Court said: &dquo; Since
American politics what we used to call
competitive conditions have not been
the trust problem.
disturbed, and outside that company
Eighteen years of construction and
there is healthy competition, there is
application by the Supreme Court have
no violation of that Law.&dquo;
Through-
brought the Sherman Law to approxi-
out the twenty-one years which inter-
mately the following position. Previ-
vened between these two decisions,
ously competing units may now merge,
and more particularly in the eighteen
consolidate or combine, by agreement
years since the Supreme Court decisions
or otherwise, whenever warranted by
in the Standard Oil and the American
sound economic considerations, pro-
Tobacco cases in 1911 and until the
vided always that there remain outside
1
In this
the
paper Mr. Montague has utilized
merger, consolidation or combina-
portions of his address before the New Hamp-
tion enough rival competing units of
shire State Bar Association, July 2, 1927, en-
sufficient strength and activity to in-
titled "The Regulation of Business," and his
sure the continuance of actual competi-
address before the Michigan State Bar Associa-
tive conditions at
tion, September 13,1929, entitled "Courts, Com-
substantially every
missions and the Anti-Trust Laws."
point throughout that industry.
179



at SAGE PUBLICATIONS on November 29, 2012
ann.sagepub.com
Downloaded from

---

180
Big business-and little business, too
dation there remains enough healthy
-in the past eighteen years has proved
competition to insure a continuance
that large size and high efficiency need
throughout the whole of that industry
not be feared so long as outside compe-
of healthy, competitive conditions.
tition continues vigorous and healthy.
That is one kind of restraint with
With the ever-evolving progress of
which the Sherman Act deals, and
American economic life, the above rule
now we take up the other. What can
seems certain to be applied more and
a person, firm or corporation that is
more broadly by the...