Special Privilege Under Our Federal Anti-Trust Laws
| DOI | 10.1177/000271623014700105 |
| Date | 01 January 1930 |
| Published date | 01 January 1930 |
| Subject Matter | Articles |
32
Special
Privilege
Under
Our
Federal
Anti-Trust
Laws
By
GEORGE
A. FERNLEY
Secretary-Treasurer,
National
Hardware
Association
of
the
United
States,
Philadelphia,
Pennsylvania
ENACTED
in
1890
to
meet
public
demand
for
protection
against
practices
which
were
believed
to
en-
croach
upon
and
threaten
the
public
welfare,
there
is
no
doubt
that
the
Sher-
man
Law
served
an
important
and
valu-
able
purpose
at
that
time.
However,
as
a
result
of
fundamental
changes
in
American
business,
the
usefulness
of
that
Law
is
seriously
questioned.
A
considerable
body
of
public
opinion
is
demanding
a
change
which
would
per-
mit
intelligent
cooperation
for
the
eradication
of
uneconomic
practices
recognized
as
evils,
without
the
con-
stant
fear
of
prosecution,
heavy
fines
and
imprisonment.
In
fact,
need
for
an
equitable
and
fair
modification
of
the
Sherman
Law
has
long
been
recog-
nized
by
persons
of
authority.
Evidence
of
this
is
furnished
by
messages
of
President
Roosevelt
to
Congress.
In
1905
he
said:
It
has
been
our
misfortune
that
the
only
laws
on
this
subject
have
hitherto
been
of
a
negative
or
prohibitive,
rather
than
of
an
affirmative
kind,
and
still
more,
that
they
have
in
part
sought
to
prohibit
what
could
be
effectively
prohibited,
and
have
in
part
confounded
what
should
be
allowed
and
what
should
not
be
allowed.
It
is
generally
useless
to
try
to
prohibit
all
restraints of
competition,
whether
those
restraints
be
reasonable
or
unreasonable.
Where
it
is
not
useless
it is
generally
hurtful.
This
is
an
age
of
combinations
and
any
effort
to
prevent
all
combination
will
not
only
be
useless,
but
in
the
end,
vicious
because
of
the
contempt
for
law
which
failure
to
en-
force
the
law
invariably
produces.
Again,
in 1908,
he
urged
upon
Congress
modification
of
the
Law,
declaring:
As
I
have
repeatedly
pointed
out,
this
Anti-Trust
Act
was
a
most
unwisely
drawn
statute.
It
is
mischievous
and
unwhole-
some
to
keep
upon
the
statute
books
un-
modified
a
law
like
the
Anti-Trust
Law,
which,
while
in
practice
only
partially
effective
against
vicious
combinations,
has
nevertheless
in
theory
been
so
construed
as
sweepingly
to
prohibit
every
combination
for
the
transaction
of
modern
business.
... Congress
cannot
afford
to
leave
it
on
the
statute
books
in
its
present
shape.
In
August,
1908,
during
his
success-
ful
campaign
for
election,
President
Taft
asserted:
I
am
inclined
to
the
opinion
that
the
time
is
near
at
hand
for
an
amendment
of
the
Anti-Trust
Law,
defining
in
greater
detail
defaults
against
it,
and
its
aim,
and
making
clearer
the
distinction
between
lawful
agreements,
reasonably
restraining
trade,
and
those
which
are
pernicious
in
effect.
Emanating
from
such
distinguished
authorities,
these
statements
are
of
striking
importance
in
their
relation
to
the
statutory
exemptions
from
the
Sherman
Law,
subsequently
granted
by
Congress
to
specific
branches
of
American
industry.
OPPOSITION
INCREASING
Opposition
to
the
Law
has
grown
during
the
succeeding
years.
A
re-
cent
report
of
the
Commerce
Commit-
tee
of
the
American
Bar
Association
condemned
it
in
no
uncertain
terms:
The
Sherman
Law
is
economic
legisla-
tion.
It
can
only
be
helpful
if
it
is
sub-
servient
and
not
in
opposition
to
economic
laws.
A
rule of
conduct
applicable
to
the
simple
conditions
of
English
business
as
conducted
hundreds
of
years
ago
in
a
ter-
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