Antitrust

Antitrust law concerns the limits placed by governments on the unrestricted operation of corporations, usually intended to prevent the abuse of market power by companies. "Antitrust" is the usual term in the United States from the 1880s; in Europe and elsewhere it is called competition policy.

The United States was the first country to develop an effective antitrust regime. As Freyer (2006) shows, before 1945 the United States stood alone in its enthusiasm for antitrust. Britain and Nazi Germany, for example, endorsed cartels and other schemes to eliminate competition and stabilize markets. The American occupation forces introduced antitrust into Japanese policy. Elsewhere the Americans actively proselytized antitrust and provided technical assistance for those who wanted it.

The Antitrust Concept

The term "antitrust" originated from the nineteenth–century practice of placing the stock of a large number of formerly competing companies into the hands of trustees who were then able to exercise a very substantial degree of commercial and political influence. Public indignation at what were perceived as the consequent abuses by "big business" led in 1890 to the passing of legislation that made illegal any attempt to monopolise any part of trade or commerce.

Supreme Court interpretations of that legislation attributed to it objectives which go beyond the pursuit of economic efficiency. In 1945 Judge Learned Hand attributed to its legislators the desire to put an end to great aggregations of capital because of the helplessness of the individual before them, and in 1962, the Court attributed to Congress the policy of protecting small businesses even at the expense of higher prices. The use of antitrust to attack big business and to protect small firms continued to be a feature of antitrust policy until appointees of the Reagan administration took steps to limit that use of the legislation, following a campaign by economists and lawyers of the Chicago School to make the economic welfare of consumers the sole criterion for antitrust rulings.

The 1890 legislation was at first unworkable because its prohibition was so general as to make criminal offences of a wide range of well-established and harmless business practices. A Supreme Court ruling in 1911 provided a workable interpretation under which most forms of business behaviour could be judged by their effect rather than solely by their form.

Antitrust Law

The Sherman Act of 1908 states that

Every contract, combination in the form of trust … or otherwise, or conspiracy in restraint of ::trade … is hereby declared illegal. … Every person who shall monopolize or attempt to monopolize  ::any part of trade or commerce shall be deemed guilty of a felony.

The Sherman Act was supplemented in 1914 by the more specific terms of the Clayton Act. Among practices made unlawful under that act were price discrimination, exclusive dealing, tie-in sales, and interlocking directorates - subject in each case to the condition that the purpose or effect of the practice would be 'substantially to lessen competition'. Section 2, dealing with price discrimination, was amended in 1936 by the Robinson-Patman Act, which made it unlawful to discriminate in price between different purchasers of goods of like grade and quality where the effect would be substantially to lessen competition (unless the price differentials would only compensate for differences in costs of supply). Section 7 of the Clayton Act, as amended in 1950, prohibited mergers which would substantially lessen competition. The Clayton Act and its amendments do not create criminal offences.

Antitrust law is enforced in the courts and its interpretation is subject to legal precedents, but Supreme Court rulings have from time to time brought about major changes in its application. One of the major changes was the introduction in 1911 of the rule of reason , which ruled that only combinations and contracts unreasonably restraining trade are subject to actions under the anti-trust laws and that the possession of size or monopoly power is not illegal per se. A further change was introduced in 1977 with the ruling that the resulting gains in efficiency were admissible as a defence of some vertical restraints. Further changes have in effect been introduced by guidelines issued by the Federal Trade Commission and the Department of Justice.

The Implementation of Antitrust Law

In the first phase of the implementation of the antitrust legislation, priority was given to attempts to break up existing monopolies and prevent the formation of others. In the first major episode, the government stopped the formation of the "Northern Securities Company," which threatened to monopolize transportations in the northwest. In 1911 the Supreme Court upheld a court decision against Standard Oil and broke it into three dozen separate companies that eventually competed with one another, including Standard Oil of New Jersey (later known as Exxon and Exxon-Mobil), Standard Oil of Indiana (Amoco), of New York (Mobil), of California (Chevron), and so on. However, the U.S. Steel Corporation, which was much larger than Standard Oil, used rule of reason arguments in a successful defence against an antitrust suit in 1920. . In 1983 the Reagan administration used the Sherman Act to break up AT&T, a nationwide telephone monopoly, into one long-distance company and six regional local service companies. In 1999 a coalition of 19 states and the Department of Justice sued Microsoft over its attempt to remove the competitive threat posed by the Netscape browser, and in 2000 a trial court ordered Microsoft to be split in two; but Microsoft argued successfully on appeal that splitting the company would diminish efficiency and slow the pace of software development. The admissiblity by that time of efficiency defences had made it more difficult to make a successful case for the breaking up of large firms and anti-monopolization measures have since tended to concentrate upon the control of mergers.

Exceptions from Antitrust Regulation

Exceptions exist to the antitrust regimes, most notably regarding patents and copyrights. Each of these doctrines give the owner a legal monopoly over the invention or the work of authorship at issue. Furthermore, because the owner of a patent has the legal right to monopolize the invention to which the patent applies, it may also license the invention to competitors and control the prices that those competitors charge. Another legal form of anticompetitive conduct is state action, as a government may legally choose to monopolize a particular product, or to permit private actors to monopolize that product. Finally, use of the legal system in a way that harms competitors is legal, so long as the legal claims are brought for the legitimate vindication of rights, rather than as a mere tool of harassment.

SEE ALSO

• Competition policy
• EU competition policy

Bibliography

United States

• Areeda, Phillip and Louis Kaplow. Antitrust Analysis: Problems, Texts, Cases (1997)
• Baker, Jonathan B. "The Case for Antitrust Enforcement," The Journal of Economic Perspectives Vol. 17, No. 4 (Autumn, 2003), pp. 27-50 in JSTOR
• Crandall, Robert W., and Clifford Winston. "Does Antitrust Policy Improve Consumer Welfare? Assessing the Evidence," The Journal of Economic Perspectives> Vol. 17, No. 4 (Autumn, 2003), pp. 3-26 in JSTOR
• Freyer, Tony. Regulating Big Business: Antitrust in Great Britain and America, 1880-1990 (1992)
• Freyer, Tony A. Antitrust and Global Capitalism, 1930–2004. 2006. 450 pp. ISBN 978-0-521-81788-2
• Hofstadter, Richard. The Paranoid Style in American Politics and Other Essays (1965), essay on history of antitrust ideas
• Hylton, Keith N. Antitrust Law: Economic Theory and Common Law Evolution (2003)
• Kaysen, Carl, and Donald F. Turner. Antitrust Policy an Economic and Legal Analysis (1971) online edition
• Letwin, William. Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (1965)
• Miscamble, Wilson D. "Thurman Arnold Goes to Washington: A Look at Antitrust Policy in the Later New Deal," The Business History Review Vol. 56, No. 1 (Spring, 1982), pp. 1-15 in JSTOR
• Peritz, Rudolph J. R. "Three Visions of Managed Competition, 1920-1950," Antitrust Bulletin, Spring 1994 39 #1 273-287.
• Posner, Richard A. Antitrust Law (2nd ed. 2001)
• Sklar, Martin J. The Corporate Reconstruction of American Capitalism, 1890-1916: The Market, the Law, and Politics (1988)
• Stelzer, Irwin M. Selected Antitrust Cases: Landmark Decisions in Federal Antitrust (1961) online edition
• Sullivan, E. Thomas. The Political Economy of the Sherman Act: The First One Hundred Years (1991) online edition
• Thorelli, Hans. The Federal Antitrust Policy: The Federal Antitrust Policy: Origination of an American Tradition (1954)
• Williamson, James R. Federal Antitrust Policy during the Kennedy-Johnson Years 1995. 188 pgs. online edition

Europe

• Chapman, Dudley H., and Barry E. Hawk. Molting Time for Antitrust: Market Realities, Economic Fallacies, and European Innovations (1991) online edition
• Freyer, Tony. Regulating Big Business: Antitrust in Great Britain and America, 1880-1990 (1992)
• Freyer, Tony A. Antitrust and Global Capitalism, 1930–2004. 2006. 450 pp. ISBN 978-0-521-81788-2, explores the development of antitrust law in Australia, Japan, Germany, Poland, and the European Union (EU)
• Jones, Clifford A. Private Enforcement of Antitrust Law in the EU, UK, and USA (1999) online edition
• Sauter, Wolf. Competition Law and Industrial Policy in the EU (1997) 262 pgs. online edition

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