The True and Limited Function of Anti-Trust Statutes

AuthorJesse W. Barrett
Published date01 January 1930
Date01 January 1930
DOIhttp://doi.org/10.1177/000271623014700104
Subject MatterArticles
26
The
True
and
Limited
Function
of
Anti-Trust
Statutes
By
JESSE
W.
BARRETT
Member,
Missouri
and
St.
Louis
Bars;
Former
Attorney
General
of
Missouri,
St.
Louis,
Missouri
THERE
are
many
who
assert
that
our
present
anti-trust
statutes
are
weak
and
inadequate,
while
others
are
praising
their
wisdom
and
strength,
and
still
others
are
regarding
them
with
confusion
and
uncertainty.
The
writer
submits
that
before
intelligent
dis-
cussion
can
be
had
there
must
first
be
a
clear
and
general
understanding
of
the
nature
and
purpose
of
these
laws.
They
are
not
affirmative,
but
negative.
They
do
not
compel;
they
forbid.
They
do
not
create
com-
petition ;
they
forbid
artificial
inter-
ference
with
full
and
free
competition.
The
statutory
law
cedes
to
the
eco-
nomic
law
its
authority
in
the
field
of
competition.
It
places
the
eco-
nomic
law
upon
the
throne,
so
to
speak,
and
is
content
to
stand
by
with
drawn
sword
to
defend
it.
With
that
conception
in
mind,
much
of
the
con-
fusion
respecting
the
use
and
abuse
of
the
anti-trust
statutes
is
removed,
and
it
is
possible
to
discern
both
their
weaknesses
and
their
strength.
COMPETITION
AND
PAICES
The
weakness
in
this
governmental
policy
is
that
it
presupposes
the
ex-
istence
of
competition,
or
at
least
as-
sumes
that
healthy
competition
must
arise,
in
the
absence
of
any
artificial
barrier
or
restraint.
This,
in
turn,
presupposes
a
competitive
field
of
equals
or
near
equals,
and
the
theory
fails
where
that
is
not
true.
For
illustration,
while
I
was
Attorney
General
of
my
state,
I
found
that
all
of
the
brick
companies
in
St.
Louis
were
using
the
same
price
list,
and
that
prices
appeared
to
be
too
high.
Except
for
the
latter
circumstance,
I
might
not
have
thought
investigation
necessary,
for
uniformity
of
price
does
not,
as
the
public
commonly
believes,
constitute
proof
of
price
combination,
nor
is it
necessarily
objectionable.
The
American
farmers,
for
instance,
have
no
price
agreement,
yet
the
price
of
wheat
on
a
given
day
and
at
a
given
place
is
invariably
the
same
for
all
sellers.
The
uniformity
is
due
not
to
restraint
of
competition,
but
to
the
fullest
and
freest
competition.
As
John
Stuart
Mill
said
in
his
Principles
of
Political
Economy:
It
is
axiomatic
that
there
cannot
be
for
the
same
article
of
the
same
quality
two
prices
in
the
same
market,
assuming
that
both
the
buyer
and
the
seller
take
pains
to
know
what
that
price
may
be.
Free
competition
is
the
great
evener.
It
is
just
as
inconceivable
that
you
can
have
two
levels
of
water
in
a
set
of
communicating
tubes
as
it
is
that
you
can
have
two
levels
of
prices
in
communicating
markets.
The
freer
the flow
of
water
between
the
tubes,
the
sooner
the
same
level
will
The
reached
in
all
the
tubes.
LARGE
COMPANIES
AS
STABILIZERS
This
free
action
of
competition,
how-
ever,
levels
the
price
around
the
justum
pretium,
and
abnormal
price
suggests
artificial
influences.
In
this
instance
I
found
with
cer-
tainty
that
no
illegal
price
agreement
existed;
in
fact,
I
found
that
nothing
could
be
more
useless.
One
brick
company
was
as
large
as
all
of
the
other
companies
combined.
The
total
out-
put
of
all
of
the
companies
was
not
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