Who Shall Administer the Anti-Trust Laws?

• Author: James T. Young
• DOI: 10.1177/000271623014700122
• Published date: 01 January 1930
• Date: 01 January 1930
• Subject Matter: Articles

171

Who

Shall

Administer

the

Anti-Trust

Laws?

By

JAMES

T.

YOUNG

Professor

of

Public

Administration,

University

of

Pennsylvania,

Philadelphia,

Pennsylvania

WO

important

movements,

now

under

way,

may

shortly

prove

of

vital

interest

to

every

American:

the

strengthening

of

court

organization

to

produce

quicker,

more

accurate

justice;

and

the

reorganization

of

business

into

larger,

more

eflective

units.

These

two

separate

movements

im-

pinge

at

a

point

which

is

the

subject

of

this

paper.

Hitherto

we

have

taken

for

granted

that,

of

course,

the

adminis-

tration

of

the

anti-trust

laws

was

a

matter

for

the

courts.

The

judge,

on

his

part,

has

usually

sought

to

express

the

ideas

of

the

law-maker.

If

these

ideas

were

not

clear

or

were

impossible

of

fulfilment,

the

judge’s

duty

has

forced

him

into

a

bog

of

socio-economic

reasoning

and

theorizing

which

can

be

neither

helpful

to

the

interests

con-

cerned

nor

welcome

to

the

courts

them-

selves.

Such

is

the

present

status

of

our

laws

on

trade

combinations

at

a

moment

when

the

greatest

consolida-

tions

in

our

history

seem

about

to

take

place.

In

deciding

whether

or

not

a

change

in

enforcement

is

necessary,

we

shall

be

influenced

by

three

outstand-

ing

features

of

our

present

methods.

INDEFINITENESS

OF

THE

LAW

The

first

is

the

almost

incoherent

vagueness

of

some

of

these

laws.

Here

one

meets

with:

&dquo;restraint

of

trade&dquo;;

&dquo;monopoly &dquo;;

;

&dquo; unfair

competition&dquo;;

&dquo;tend

to

create

a

monopoly&dquo;;

&dquo;price

discrimination&dquo;;

&dquo;such

injunctions&dquo;

-&dquo; such&dquo;

presumably

referring

to

a

lengthy

and

highly

ambiguous

preced-

ing

paragraph

of

the

(Clayton)

Law

on

labor

disputes.

Some

hold

that

such

indefiniteness

is

admirable,

in

that

it

allows

the

courts

to

develop

the

law

with

greater

elas-

ticity

and

freedom.

We

shall

presently

examine

a

few

decisions

to

see

if

this

be

true.

One

thing

stands

out

in

all

this

mass

of

vitally

important

laws;

they

are

not

clear,

yet

they

go

to

the

root

of

the

most

important

business

activities

of

our

people.

It

has

been

well

said

that

an

interpretation

might

fairly

be

given

to

the

present

trade

laws

which

would

render

illegal

the

existence

of

over

twelve

hundred

of

the

largest

and

most

potential

companies

in

American

business.

Whether

the

economic

and

social

aims

of

these

laws

are

right

or

wrong,

is

not

the

question.

Whether

right

or

wrong,

these

aims

are

impossible

of

fulfilment

without

reasonable

clarity

of

expression

in

the

laws

themselves

or

lacking

some

administrative

authority

which,

by

making

supplementary

rul-

ings

and

decisions,

could

speedily

clear

up

doubtful

points.

In

relying

on

the

courts

for

the

en-

forcement

of

our

trade

laws,

couched

in

these

vague

terms,

we

have

also

to

reckon

with

the

jury

box.

If

it

be

hard,

nay,

impossible,

for

our

highest

court

to

reach

unanimity

in

the

opin-

ions

of

its

justices,

how

can

we

expect

a

jury

to

apply

the

law?

Several

huge

packing

corporations

form

a

company

which

distributes

packing-house

products

in

many

large

cities.

This

combination

is

attacked

by

the

Government

and

is

charged

with

having

manipulated

prices

of

meat

products

upward,

through

the

suppres-

sion

of

competition.

At

the

trial,

the

Government

submits

telegrams

from

the

central

office

to

local

branches

of

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