antitrust: Definition and Much More from Answers.com

Antitrust law consists of a body of statutes, judicial decisions, and enforcement activities designed to check business activities posing a threat to free‐market competition. The core antitrust concern with competition reflects a fundamental belief that economic questions are generally best determined in the American economy through a process of independent, competitive decision‐making by profit‐seeking firms striving to serve customers who seek maximum satisfaction through their choices among market alternatives. Antitrust law aims to protect economic competition by prohibiting collusive, exclusionary, and monopolistic practices that restrain competition and thereby pose a danger of increased prices and reduced output, quality, and innovation. It contrasts with other forms of economic regulation that directly prescribe the number, rates, and service offerings of particular firms, for example, in “natural monopoly” settings where economies of scale are thought to preclude active multifirm competition.

Basic Provisions and Long‐run Patterns

Origins and Early Development

From the New Deal to the 1970s

Modern Antitrust Law

Conclusion

Although the major developments discussed here have dominated antitrust law since the late nineteenth century, antitrust analysis also has focused on such other important issues as the scope of various exceptions to antitrust coverage, including exceptions for restraints attributable to state rather than private decision making and for First Amendment–protected activities. Today, in the midst of ongoing debate over economic analysis and substantive doctrine, the meaning of antitrust law's protection of competition continues to evolve as American economic, intellectual, and political contexts continue to change.

See also Capitalism.

Bibliography

• Phillip Areeda and Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, 2d ed. (2000).
• Robert Bork, The Antitrust Paradox: A Policy at War with Itself (1978).
• Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America 1880–1990 (1992).
• Ernest Gellhorn and William Kovacic, Antitrust Law and Economics, 4th ed. (1994).
• Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and its Practice, 2d ed. (1999).
• James May, Antitrust in the Formative Era: Political and Economic Theory in Constitutional and Antitrust Analysis, 1880–1918, Ohio State Law Journal 50 (1989): 257–395.
• Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law, rev. ed. (2001).
• Martin J. Sklar, The Corporate Reconstruction of America, 1890–1916: The Market, the Law, and Politics (1988).
• Hans Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (1955)

— James May

Antitrust Laws aim to ensure the existence of competitive markets by sanctioning producers and sup-pliers of products and services when their conduct departs from that competitive ideal. Of course, what constitutes this ideal and what conduct betrays it have varied during the long history of antitrust law. Until the late nineteenth century, this regulatory enterprise belonged chiefly to the courts. Then, with the rise of large-scale industrial corporations, Congress entered the fray. Beginning in 1890, Congress has enacted three key antitrust statutes—the Sherman Act, the Clayton Act, and the Robinson-Patman Act—each responding to a moment of heightened public anxiety about monopolistic combinations and their anti-competitive business practices.

Long before the Sherman Act, Americans harbored a deep hostility toward monopolies. Several of the first state constitutions, written in the 1770s and 1780s, condemned monopolies as violations of the cherished principles of equal rights and equality before the law. Some of the founding generation, including Thomas Jefferson, sought to include a prohibition on monopolies in the federal Bill of Rights. Andrew Jackson helped make the second National Bank one of the most controversial "monopolies" of Antebellum America.

For a Jefferson or Jackson, "monopoly" meant state-granted authority over some economic activity, like a particular domain of banking or a trade or a means of transportation, in the hands of some politically privileged group at the expense of the majority. To possess a monopoly in this sense was to enjoy a legal right to exclude others from pursuing the same activity.

Gradually, this emphasis on state-created monopolies gave way to an emphasis on economic power in a given market and on the abuse of that power. At common law, to "monopolize" came to mean preventing others from entering or competing in a market or line of business by agreement or combination among erstwhile competitors. An agreement or combination to restrict competition by itself was not enough; unless it aimed to close the channels of trade to others, or unless it resulted in outrageous prices or the withholding of necessaries of life, it did not fall under this common law prohibition.

Nineteenth Century

By the late nineteenth century, general incorporation laws, enacted in Jackson's day to make the privilege of incorporation available to all, had helped make the corporation a common form of industrial enterprise. At the same time, booming technological development and industrial growth brought new wealth, new inequalities, and new concentrations of economic power.

The "rise of big business" began with the railroads in the 1850s; only in the 1880s and 1890s, however, did manufacturing firms follow suit. By 1900, John D. Rockefeller's Standard Oil Company, James B. Duke's American Tobacco Company, and dozens of other new nation-spanning giants had emerged, exerting substantial control over entire industries and their newly nationalized markets. In popular political discourse, firms like these were dubbed "trusts"; in fact, most did not take the legal form of a trust, but all shared centralized management and great size.

The search for profits and control motivated this great movement of expansion and consolidation. In many industries, new technologies and new ways of organizing production yielded economies of scale, which advantaged large firms. Bigness, however, magnified the costs of sharp increases in the cost of materials, market downturns, or "ruinous competition" brought on by new market entrants and the "overproduction" of goods. Some firms sought to manage these hazards through vertical integration; others through horizontal arrangements. The latter involved producers of a given good agreeing to limit production and/or maintain prices; it could take the simple form of a contract or the more complex and "tighter" form of a cartel or, finally, a merger among previously competing firms. Vertical integration, by contrast, involved the gathering of many functions into a single firm: from the extraction of raw materials, for example, to the transformation of those materials into finished products, to the wholesaling and retailing of those products. The leading example of this kind of corporation was Standard Oil, whose ruthless and predatory practices generated a public outcry against the "Trusts." So, too, did the horizontal mergers that resulted in "Trusts" like the gigantic American Sugar Refining and American Tobacco Companies. While the "Trusts" often brought down, or left unaffected, the costs of goods to consumers, their vast power over the nation's economy—as well as their exploitive labor practices and their penchant for buying and selling state and federal lawmakers—were ominous. The Trusts also seemed bent on destroying the nation's small-and medium-sized businesses and producers.

Before the passage of the Sherman Act in 1890, the states had responded to the Trusts with their own anti-trust efforts, inscribing antimonopoly provisions in their state constitutions and enacting antitrust legislation of their own. State antitrust measures took various forms—many protecting against some combination of monopoly, restraint of trade, restraint of competition, pooling, price fixing, output limitations, territorial divisions, resale restraints, exclusive dealing, refusals to deal, local price discrimination, and predatory pricing—and often set forth more detailed prohibitions and provided for stricter sanctions than did federal legislation (including fines and prison terms). What is more, the states and not the federal government issued corporate charters. Accordingly, the power to regulate and limit corporate growth directly, through structural constraints, was a power widely viewed as belonging to the states; and where the states undertook to enforce such limits, the United States Supreme Court upheld them.

During the 1880s, a few state attorneys general undertook formidable suits under this body of law. In general, however, state prosecutors and state judges proved reluctant to invoke these restraints, out of fear that strict enforcement would result in factory closures and ultimately damage local economies. The giant corporations and the corporate bar also succeeded in lobbying through the New Jersey, Delaware, and New York state legislatures major revisions of those states' corporation laws, eliminating or weakening key restraints on corporate growth and consolidation. Corporations hobbled by other states' more traditional legal regimes easily reincorporated in the liberalized jurisdictions.

Despite these sharp practical limitations of state anti-trust law, members of Congress and the federal bench would continue, during the formative era of federal anti-trust, to view state government as a primary locus of authority over the Trusts. So, when Congress took up the matter in 1888–90, the division of federal versus state authority loomed large in debates. Senator John Sherman of Ohio, chair of the Senate Finance Committee and sponsor of the Sherman Act, saw clearly the inadequacies of state regulation. His first antitrust bill envisioned direct federal control over corporate structure, authorizing federal courts to dissolve all agreements or combinations "extending to two or more states," and "made with a view or which tend to prevent full and free competition" in goods "of growth, production, or manufacture," much as state officials could "apply for forfeiture of charters." Sherman's bill, however, ran afoul of the constitutional scruples of colleagues on the Judiciary Committee, who saw it as usurping power belonging to the states, not the national government. The latter redrafted Sherman's bill in terser terms, so the statute as enacted omitted reference to "growth, production, or manufacture" and simply condemned every combination in restraint of trade or commerce and also made monopolization and attempts to monopolize any part of interstate trade or commerce.

The 1890 Congress deliberately left to the courts the task of determining which specific forms of business conduct and business arrangements violated the general common-law-inspired language of the Act. As a procedural matter, the Act departed from the common law in two key respects. It made such restraints or monopolies not merely void (as they were at common law) but punishable as misdemeanors and also liable to private, civil suits for treble damages. As a substantive matter, however, for two decades, judges and commentators could not agree on whether the new statute simply codified the common law norms or enacted stricter prohibitions. The common law distinguished between "reasonable" and "unreasonable" restraints, condemning only the latter, but the statutory language contained no such language. As is often the case, it seems likely that Congress preferred ambiguous statutory language that could please many competing constituencies: in this case, both the agrarian and populist public demanding a restoration of proprietary forms of capitalism and the dismantling of the great trusts, and also the metropolitan business interests that favored the continued development and flourishing of the new large-scale corporations. To the latter constituency, Sherman offered assurances that the courts would carry forward the old common law distinction and leave alone the "useful" combinations, no matter how large. Likewise, the members of the Judiciary Committee, who drafted the language of the actual statute, affirmed that it did no more than authorize the federal courts to extend the "old doctrine of the common law" to interstate (and foreign) commerce.

Twentieth Century

The Supreme Court pursued a somewhat jarring course. Until 1911, a majority of the Court insisted that the Act went further than the common law, condemning all restraints of trade. Thus, the Court read the Act to outlaw cartel-like arrangements on the part of trade associations of railways or manufacturing firms, which, from participants' perspective, merely aimed to halt "ruinous competition" by establishing uniform rates or prices. By contrast, where such arrangements did not aim to foreclose competition from outsiders nor result in "unreasonable" costs to the public, but instead appeared to be "for the purpose of preventing strife and financial ruin," common law courts frequently had upheld them. Similarly, in respect of tighter consolidations, common law doctrine generally held that a corporation's buying out of former competitors was not, as such, an unlawful restraint or monopoly; unlawfulness demanded other showings, such as an effort to prevent the former owners from reentering, or to prevent outsiders from entering or remaining in the line of business.

The Supreme Court majority, however, interpreted the statute in light of the widely shared social and political vision of a market order composed of small producers and independent proprietors. On this account, "powerful combinations of capital" threatened the well-being of the republic because they tended to "drive out" the "small business man" and the "independent dealer," and this was wrong, irrespective of whether such "powerful combinations" lowered or raised the price of consumer goods. This outlook met ridicule from dissenters like Justices Oliver Wendell Holmes and Edward D. White, political leaders like Theodore Roosevelt, and the corporate bar. In 1911, in the Standard Oil and American Tobacco cases, the Court, under now Chief Justice White, changed course and held that the common law's "rule of reason" was implicit in the Act. This tension between a vision of Anti-trust that condemns the "curse of Bigness" and concentrated corporate power on broad social and political grounds, versus one that has no gripe with bigness and focuses more narrowly on some conception of consumer welfare and on the prevention of particularly abusive and predatory competitive tactics, would continue to run through the changing course of legal development for the next century.

During the same two decades, while Court doctrine seemed to affirm smallness, bigness proceeded apace. Most of the nation's two hundred largest corporations were formed during the decade bracketing the turn of the century. The great majority of these new corporations, the "big business" of the early twentieth century, controlled forty percent or more of the market shares of their products; and together, they held more than one-seventh of the nation's manufacturing capacity. Many observers insisted that antitrust doctrine actually encouraged this merger movement, because its strictures seemed to fall far more heavily on cartels and loose price-fixing agreements than on mergers. In any case, public confidence in the nation's antitrust laws had all but vanished by the 1912 presidential election, and candidates Theodore Roosevelt and Woodrow Wilson both promised to bring greater public authority to bear upon the giant new corporations. Roosevelt's solution lay in supplanting state corporate charters with federal ones. Bigness, Roosevelt candidly declared, was here to stay. He proposed creating a new body of federal corporation law to separate the "good Trusts" (with their greater efficiency and economies of scale) from the "bad" (with their predatory business practices and their purely opportunistic and anti-competitive welding together of firms). For his part, candidate Wilson echoed his advisor Louis Brandeis in decrying the "curse of Bigness"; bigness in this view was generally a bad thing in itself. The Brandeisian reform vision evoked the hope of restoring a more decentralized political economy in which smaller firms continued to flourish. So, for example, Brandeis thought trade associations among small businesses deserved substantial freedom from antitrust regulation, while industrial giants ought to be policed more harshly.

Two years later, President Wilson signed into law two new antitrust measures, the Federal Trade Commission (FTC) and the Clayton Acts of 1914. The FTC Act gave birth to a regulatory commission—the Federal Trade Commission—with the power to identify and proscribe a wide range of "unfair methods of competition" and "deceptive business practices." The Wheeler-Lea Amendments of 1938 broadened the FTC Act, adding "unfair or deceptive acts or practices in commerce" to the prohibition against "unfair methods of competition," in the hope of increasing the efficiency of the FTC by reducing the time and expense involved in proving that a violator's activities had a negative effect on competition. The Clayton Act, on the other hand, responded to the call for more explicit and detailed antitrust legislation. In contrast to the highly general language of the Sherman Act, the provisions of the Clayton Act outlawed specific business practices, such as price discrimination, tying and exclusive dealing contracts, and corporate stock acquisitions.

Congress amended the Clayton Act twice, once in 1936 by the Robinson-Patman Act, and again in 1950 by the Celler-Kefauver Antimerger Act. The Robinson-Patman Act revised the prohibition against price discrimination in Section 2 of the original Clayton Act; it is the only federal law that specifically bans discriminatory pricing practices. Enacted in response to new forms of anti-competitive price discrimination, the law had a Brandeisian inspiration. It aimed to prevent chain stores from exploiting their bulk purchasing power to gain discriminatory price concessions from suppliers that unfairly threatened the competitiveness of independent retailers. In its effort to maintain a fair and competitive balance between small merchants and large chain stores, the Robinson-Patman Act was an attempt to reestablish equality of opportunity in business.

The Celler-Kefauver Act proscribed certain types of corporate mergers achieved through asset or stock acquisition, disallowing mergers that significantly lessened overall competition in a market (as opposed to the original Clayton Act, which dealt only with the effects of mergers on competition between the two merging companies). It aimed to inhibit apparently unhealthy concentration by trying to maintain a substantial number of smaller, independent competitors. From 1950 to 1980, Republican and Democratic administrations, as well as the federal courts, vigorously enforced the antimerger laws. The courts also redefined "monopolization" under the Sherman Act, so that statutes outlawed all exclusionary, restrictive, or anticompetitive conduct. The executive branch and the courts also assailed any cartel-like activity, including restraints that limited the access of horizontal competitors to outlets or inputs. The world of antitrust regulation changed dramatically during the 1980s with the advent of the Reagan administration. Economic stagnation created a climate in which businesses pressed the government for aid, and the Reagan administration ushered in a new era of laissez-faire, loosening federal regulation in many arenas including antitrust.

The hands-off antitrust policies of the Reagan and Bush years opened space for a major increase in corporate mergers. The anti-anti-merger policy, together with the more general diminution in antitrust enforcement, found intellectual support in the Chicago School's neo-classical liberalism. The latter held that unfettered freedom of business consolidation and competition almost always enhanced overall efficiency in the economy; and that such efficiency, in turn, conduced to "consumer welfare." The Chicago School's antitrust theorists, and with them Republican executives and judges, spurned as sentimental and economically senseless the social and political considerations that animated earlier generations of antitrust policymakers.

The Clinton administration, 1993–2001, ushered in a reformed "consumer welfare" standard. Instead of protecting the freedom of firms to maximize efficiency by their own lights, new policies tried preserving competition for the benefit of consumers. At the same time, while the focus of past antitrust activism was on price competition and preventing business activities that could result in artificially high prices, the Clinton administration's focus was on encouraging innovation and preventing business activities or combinations that could stifle innovation.

As business became increasingly globalized, the need for international enforcement of antitrust laws became apparent. Attempts at establishing transnational antitrust laws at the end of the twentieth century came up short. During the Clinton years, the United States championed a system of international cooperation in the enforcement of national antitrust laws as an alternative to a more thoroughgoing international solution.

Bibliography

Letwin, William. Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act. New York: Random House, 1965.

Peritz, Rudolph J. R. Competition Policy in America: History, Rhetoric, Law, 1888–1992. New York: Oxford University Press, 2000.

Sklar, Martin. The Corporate Reconstruction of American Capitalism, 1890–1916. New York: Cambridge University Press, 1988.

—William E. Forbath

This entry contains information applicable to United States law only.

Legislation enacted by the federal and various state governments to regulate trade and commerce by preventing unlawful restraints, price-fixing, and monopolies, to promote competition, and to encourage the production of quality goods and services at the lowest prices, with the primary goal of safeguarding public welfare by ensuring that consumer demands will be met by the manufacture and sale of goods at reasonable prices.

Antitrust law seeks to make businesses compete fairly. It has had a serious effect on business practices and the organization of U.S. industry. Premised on the belief that free trade benefits the economy, businesses, and consumers alike, the law forbids several types of restraint of trade and monopolization. These fall into four main areas: agreements between competitors, contractual arrangements between sellers and buyers, the pursuit or maintenance of monopoly power, and mergers.

The Sherman Anti-Trust Act of 1890 (15 U.S.C.A. § 1 et seq.) is the basis for antitrust law, and many states have modeled their own statutes upon it. As weaknesses in the Sherman Act became evident, Congress added amendments to it at various times through 1950. The most important are the Clayton Act of 1914 (15 U.S.C.A. § 12 et seq.) and the Robinson-Patman Act of 1936 (15 U.S.C.A. § 13 et seq.). Congress also created a regulatory agency to administrate and enforce the law, under the Federal Trade Commission Act of 1914 (15 U.S.C.A. §§ 41-58). In an ongoing analysis influenced by economic, intellectual, and political changes, the U.S. Supreme Court has had the leading role in shaping how these laws are applied.

Enforcement of antitrust law depends largely on two agencies, the Federal Trade Commission (FTC), which may issue cease and desist orders to violators, and the U.S. Department of Justice's Antitrust Division, which can litigate. Private parties may also bring civil suits. Violations of the Sherman Act are felonies carrying fines of up to $10 million for corporations, and fines of up to $350,000 and prison sentences of up to three years for persons. The federal government, states, and individuals can collect triple the amount of damages they have suffered as a result of injuries.

Origins

Antitrust law originated in reaction to a public outcry over trusts, which were late-nineteenth-century corporate monopolies that dominated U.S. manufacturing and mining. Trusts took their name from the quite legal device of business incorporation called trusteeship, which consolidated control of industries by transferring stock in exchange for trust certificates. The practice grew out of necessity. Twenty-five years after the Civil War, rapid industrialization had blessed and cursed business. Markets expanded and productivity grew, but output exceeded demand and competition sharpened. Rivals sought greater security and profits in cartels (mutual agreements to fix prices and control output). Out of these arrangements sprang the trusts. From sugar to whiskey to beef to tobacco, the process of merger and consolidation brought entire industries under the control of a few powerful people. Oil and steel, the backbone of the nation's heavy industries, lay in the hands of the corporate giants John D. Rockefeller and J. P. Morgan. The trusts could fix prices at any level. If a competitor entered the market, the trusts would sell their goods at a loss until the competitor went out of business and then raise prices again. By the 1880s, abuses by the trusts brought demands for reform.

History gave only contradictory direction to the reformers. Before the eighteenth century, common law concerned itself with contracts, combinations, and conspiracies that resulted in restraint of free trade, but it did little about them. English courts generally let restrictive contracts stand because they did not consider themselves suited to judging adequacy or fairness. Over time, courts looked more closely into both the purpose and the effect of any restraint of trade. The turning point came in 1711 with the establishment of the basic standard for judging close cases, "the rule of reason." Courts asked whether the goal of a contract was a general restraint of competition (naked restraint) or particularly limited in time and geography (ancillary restraint). Naked restraints were unreasonable, but ancillary restraints were often acceptable. Exceptions to the rule grew as the economic philosophy of laissez-faire (meaning "let the people do what they please") spread its doctrine of noninterference in business. As rival businesses formed cartels to fix prices and control output, the late-eighteenth-century English courts often nodded in approval.

By the time the U.S. public was complaining about the trusts, common law in U.S. courts was somewhat tougher on restraint of trade. Yet it was still contradictory. The courts took two basic views of cartels: tolerant and condemning. The first view accepted cartels as long as they did not stop other merchants from entering the market. It used the rule of reason to determine this, and put a high premium on the freedom to enter contracts. Businesses and contracts mattered. Consumers, who suffered from price-fixing, were irrelevant; the wisdom of the market would protect them from exploitation. The second view saw cartels as thoroughly bad. It reserved the rule of reason only for judging more limited ancillary restrictions. Given these competing views, which varied from state to state, no comprehensive common law could be said to exist. But one approach was destined to win out.

The Sherman Act and Early Enforcement

In 1890, Congress took aim at the trusts with passage of the Sherman Anti-Trust Act, named for Senator John Sherman (R-Ohio). It went far beyond the common law's refusal to enforce certain offensive contracts. Clearly persuaded by the more restrictive view that saw great harm in restraint of trade, the Sherman Act outlawed trusts altogether. The landmark law had two sections. Section 1 broadly banned group action in agreements, forbidding "[e]very contract, combination in the form of trust or otherwise, or conspiracy," that restrained interstate or foreign trade. Section 2 banned individuals from monopolizing or trying to monopolize. Violations of either section were punishable by a maximum fine of $50,000 and up to one year in jail. The Sherman Act passed by nearly unanimous votes in both houses of Congress.

Although sweeping in its language, the Sherman Act soon revealed its limitations. Congress had wanted action even though it did not know what steps to take. Historians would later dispute what its precise aims had been, but clearly the lawmakers intended courts to play the leading role in promoting competition and attacking monopolization: judges would make decisions as cases arose, slowly developing a body of opinions that would replace the confusing precedents of state courts. For a public expecting overnight change, the process worked all too slowly. President Grover Cleveland's Justice Department, which disliked the Sherman Act, made little effort to enforce it.

Initial setbacks also came from the Supreme Court's first consideration of the statute, in United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 (1895). Rejecting a challenge to a sugar trust that controlled over 98 percent of the nation's sugar refining capacity, the Court held that manufacturing was not interstate commerce. This was good news for trusts. If manufacturing was exempt from the Sherman Act, then they had little to worry about. The Court only began strongly supporting use of the law in the late 1890s, starting with cases against railroad cartels. By 1904, some three hundred large companies still controlled nearly 40 percent of the nation's manufacturing assets and influenced at least 80 percent of its vital industries.

After the turn of the twentieth century, federal enforcement picked up speed. President Theodore Roosevelt's announcement that he was a "trustbuster" predicted one important aspect of the future of antitrust enforcement: it would depend largely on political will from the executive branch of government. Roosevelt and his successor, President William Howard Taft, responded to public criticism over the rapid merger of even more industries by pursuing more vigorous legal action, and steady prosecution in the first decade of the twentieth century brought the downfall of trusts.

In 1911, the Supreme Court ordered the dissolution of the Standard Oil Company and the American Tobacco Company in landmark rulings that brought down two of the most powerful industrial trusts. But these were ambiguous victories. In Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619, for example, the Court dissolved the trust into thirty-three companies, but held that the Sherman Act outlawed only restraints that were anticompetitive — subject, furthermore, to a rule of reason. Critics of all stripes jumped on this decision. Some feared that conservative judges would now gut the Sherman Act; others predicted a return to lax enforcement; and businesses worried that in the absence of specific unlawful restraints, the rule of reason gave courts too much freedom to read the law subjectively.

Congressional Reform up to 1950

Dissatisfaction brought new federal laws in 1914. The first of these was the Clayton Act, which answered the criticism that the Sherman Act was too general. It declared four practices illegal but not criminal: (1) price discrimination — selling a product at different prices to similarly situated buyers; (2) tying and exclusive-dealing contracts — sales on condition that the buyer stop dealing with the seller's competitors; (3) corporate mergers — acquisitions of competing companies; and (4) interlocking directorates — boards of competing companies, with common members.

Quick to hedge its bets, the Clayton Act qualified each of these prohibited activities. They were only illegal where the effect "may be substantially to lessen competition" or "tend to create a monopoly." This language was intentionally vague. Despite specifying different tests for violations, Congress still wanted the courts to make the difficult decisions. One important limitation was added: the Clayton Act exempted unions from the scope of antitrust law, refusing to treat human labor as a commodity.

The second piece of federal legislation in 1914 was the Federal Trade Commission Act. Without attaching criminal penalties, the law provided that "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce are hereby declared illegal." This was more than a symbolic attempt to buttress the Sherman Act. The law also created a regulatory agency, the FTC, to interpret and enforce it. Lawmakers fearing judicial hostility to the Sherman Act saw the FTC as a body that would more closely follow their preferences. Originally, the commission was designed to issue prospective decrees and share responsibilities with the Antitrust Division of the Justice Department. Later court rulings would allow it greater latitude in attacking Sherman Act violations.

These laws helped satisfy the short-term demand for tougher, more explicit action from Congress. Before long, antitrust enforcement would shift with the mood of the country. As World War I and the 1920s reversed the outlook of previous years, antitrust policy was characterized by the hands-off policies of President Calvin Coolidge, who declared, "The business of America is business." Economic trends created and supported this attitude; prosperity seemed a worthwhile reward. In this era, the Justice Department gave more attention to promoting fairness than it did to attacking restrictive practices and monopoly power. Although activities such as price-fixing still came under attack, other kinds of business cooperation flourished and even received official encouragement in the early years of the New Deal. This flirtation lasted a good fifteen years, intensifying after the stock market crash of 1929.

Following what historians called the era of neglect, antitrust made a resurgence. In 1935, the Supreme Court struck down President Franklin D. Roosevelt's National Industrial Recovery Act, which coordinated industrywide output and pricing, in ALA Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570. The decision radically affected New Deal-era policy. The following year, Congress passed the Robinson-Patman Act, an attempt to make sense of the Clayton Act's bans on price discrimination. The Robinson-Patman Act explicitly forbade forms of price discrimination, in order to protect small producers from extinction at the hands of larger competitors. By 1937, economic decline brought federal antitrust enforcement back with a vengeance, as Roosevelt's administration began an extensive investigation into monopolies. The effort resulted in more than eighty antitrust suits in 1940.

One federal court case in this period, United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) (hereinafter Alcoa), changed antimonopoly law for years to come. Since the 1920s, the Supreme Court had looked skeptically on the role of a business's size in judging monopoly cases. In United States v. United States Steel Corp., 251 U.S. 417, 40 S. Ct. 293, 64 L. Ed. 343 (1920), it said, "[T]he law does not make mere size an offense, or the existence of unexerted power an offense. It, we repeat, requires overt acts." The decision weakened the monopoly ban of the Sherman Act. Rather than focus on abusive business conduct, Alcoa emphasized the role of market power. Judge Learned Hand wrote for the court, "Many people believe that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." The standard that emerged from this decision applied a two-part test for determining illegal monopolization: the defendant (1) must possess monopoly power in a relevant market and (2) must have improperly used exclusionary acts to gain or protect that power.

Congress added its last piece of important legislation in 1950 with the Celler-Kefauver Antimerger Act, addressing a weakness in the Clayton Act. Because only anticompetitive stock purchases had been forbidden, businesses would circumvent the Clayton Act by targeting the assets of their rivals. Supreme Court decisions had also undermined the law by allowing businesses to transfer stock purchases into assets before the government filed a complaint. The Celler-Kefauver amendment closed these loopholes.

The Supreme Court and Evolving Doctrine

Vigorous enforcement of antitrust legislation created an immense body of case law. After 1950, Supreme Court decisions did more than anything else to shape antitrust doctrine. Two competing outlooks emerged. One regarded markets as fragile, easily distorted by private firms, and readily correctable through public intervention. Economic efficiency mattered less, in this view, than the belief in the antitrust doctrine's ability to meet social and political goals. The opposing view saw business rivalry as generally healthy, doubted that public intervention could cure defects, and emphasized the self-correcting ability of markets to erode private restraints and private power. This outlook opposed the use of antitrust measures except to stop behavior that clearly harms the efficiency of business.

The most aggressive doctrine was developed under Chief Justice Earl Warren. The Warren Court often saw the need for decentralized social, political, and economic power, a goal it put ahead of the ideal of economic efficiency. In 1962, its first ruling on the Celler-Kefauver Act, Brown Shoe Co. v. United States, 370 U.S. 294, 82 S. Ct. 1502, 8 L. Ed. 2d 510, held that a merger between two firms accounting for only five percent of total industry output violated the principal antimerger provision of the antitrust laws. Brown Shoe also reflected the Court's hostility toward vertical restraints (restrictions imposed in contracts by the seller on the buyer, or vice versa).

This aggressive trend peaked in 1967 in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S. Ct. 1856, 18 L. Ed. 2d 1249. Arnold concerned nonprice vertical restraints (territorial or customer restrictions on the resale of goods). The majority ruled that such restraints were per se illegal — in other words, so harmful to competition that they need not be evaluated. In ensuing years, critics condemned the Court's use of "per se" tests to invalidate agreements between competitors or between sellers and buyers. The so-called Chicago school, led by scholars Robert H. Bork and Richard A. Posner, argued that some nonprice vertical restraints actually led to gains in economic efficiency. These ideas would soon take hold.

By the mid-1970s, the Court backed off its robust interventionism. Two pivotal decisions came in 1977, including the most important since World War II, Continental TV v. GTE Sylvania, 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568. In a decisive departure from the previous decade's rulings, the Court abandoned its hostility toward efficiency. Now, for evaluating nonprice vertical restraints, it returned to the use of a rule of reason. Per se rules would remain influential, but economic analysis would be the primary tool in formulating and applying antitrust rules. The second powerful change in doctrine was Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701. Brunswick said antitrust laws "were enacted for the ‘protection of competition, not competitors.' " The irony was addressed to private antitrust litigants. If they wanted to sue, the Court said, they would have to prove "antitrust injury." This decision threw out the old view that the demise of individual firms was plainly bad for competition. Replacing it was the view that adverse effects to businesses are sometimes offset by gains in reduced costs and increased output. Increasingly, after Brunswick, the Supreme Court and lower courts would accept economic efficiency as a justification for dominant firms to defend their market position. By 1986, efficiency-based analysis was widely accepted in federal courts.

Even against this restrictive background, explosive change occurred. The early 1980s saw the dramatic conclusion of a historic monopoly case against the telephone giant American Telephone and Telegraph (AT&T;) (United States v. American Telephone & Telegraph Co., 552 F. Supp. 131 [D.D.C. 1982], aff'd in Maryland v. United States, 460 U.S. 1001, 103 S. Ct. 1240, 75 L. Ed. 2d 472 [1983]). The Justice Department settled claims that AT&T; had impeded competition in long-distance telephone service and telecommunications equipment. The result was the largest divestiture in history: a federal court severed the Bell System's operating companies and manufacturing arm (Western Electric) from AT&T;, transforming the nation's telephone services. But the historic settlement was an exception to the political philosophy and level of enforcement that characterized the decade. As the 1980s were ending, the Justice Department dropped its thirteen-year suit against International Business Machines (IBM). This lengthy battle had sought to end IBM's dominance by breaking it up into four computer companies. Convinced that market forces had done the work for them, prosecutors gave up.

Throughout the 1980s, political conservatism in federal enforcement complemented the Supreme Court's doctrine of nonintervention. The administration of President Ronald Reagan reduced the budgets of the FTC and the Department of Justice, leaving them with limited resources for enforcement. Enforcement efforts followed a restrictive agenda of prosecuting cases of output restrictions and large mergers of a horizontal nature (involving firms within the same industry and at the same level of production). Mergers of companies into conglomerates, on the other hand, were looked on favorably, and the years 1984 and 1985 produced the greatest increase in corporate acquisitions in the nation's history.

As the Supreme Court strengthened requirements for evidence, injury, and the right to bring suit, antitrust cases became harder for plaintiffs to win. Most decisions in this period narrowed the reach of antitrust. A few rare exceptions, such as Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S. Ct. 2847, 86 L. Ed. 2d 467 (1985), which condemned a monopolist's unjustified refusal to deal with a rival, faintly recalled the tough outlook of the Warren Court. Nonintervention, however, took precedence. In the strongest example, Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), the majority dismissed allegations that Japanese television manufacturers had engaged in a twenty-year pricing conspiracy designed to drive U.S. electronics equipment manufacturers out of business. The Court discouraged claims that rested on ambiguous circumstantial evidence or lacked "economic rationality," suggesting that lower courts settle these by summary judgment (judicial decision without a trial).

The 1990s

Once again proving that antitrust law never remains static, the late 1980s and early 1990s brought more changes in enforcement, economic analysis, and court doctrine. At the state level in the late 1980s, governments attacked mergers and restraints. The Supreme Court gave these efforts support in California v. American Stores Co., 495 U.S. 271, 110 S. Ct. 1853, 109 L. Ed. 2d 240 (1990), upholding the ability of state governments to break up illegal mergers. Another trend came again from academia, where, for years, critics of the Chicago school had been reevaluating its highly influential efficiency model. They concluded that a proper analysis of efficiency goals showed that efficiency demanded tighter antitrust controls, not stubborn nonintervention.

An important 1992 Supreme Court case seemed to support this view. Eastman Kodak Co. v. Image Technical Services, 504 U.S. 451, 112 S. Ct. 2072, 119 L. Ed. 2d 265 (hereinafter Kodak), concerned tying arrangements (contracts between buyer and seller that restrict competition) in the sale and service of photocopiers. Kodak sold replacement parts only to buyers who agreed to have Kodak exclusively service the machines, and the restriction prompted a lawsuit from eighteen independent service organizations (ISOs). The company defended itself by arguing that even if it did monopolize the market, it lacked the necessary market power for a Sherman Act violation. The Court rejected the idea that this was enough to create a legal rule that equipment competition precluded any finding of monopoly power in the parts and services industry. In declaring Kodak's arrangement illegal, Justice Harry A. Blackmun warned about the dangers of relying on economic theory as a substitute for "actual market realities" — in this case, the harm done to ISOs who were shut out of the service market.

After the Reagan years, antitrust attitudes sharpened in Washington, D.C. The administration of President George Bush adopted a slightly more activist approach, reflected in joint guidelines on mergers issued in 1992 by the FTC and the Justice Department. In following the trend away from strict Chicago school efficiency standards, the guidelines looked more closely at competitive effects and tightened requirements. But understaffed government attorneys generally lost court cases. President Bill Clinton took this activism further. Anne K. Bingaman, his appointee to head the Department of Justice's Antitrust Division, beefed up the division's staff with sixty-one new attorneys, declaring her organization the competition agency. The Antitrust Division filed thirty-three civil suits in 1994, roughly three times the annual number brought under Reagan and Bush. It won some victories without going to court, in one instance compelling AT&T; to keep a subsidiary private, but it lost a major lawsuit claiming that General Electric had conspired with the South African firm of DeBeers to fix industrial diamond prices.

Under President Clinton, the most important antitrust action involved a federal probe of the computer software giant Microsoft Corporation. In its potential for far-reaching action, this was the biggest antitrust case since those involving AT&T; and IBM. Competitors complained that Microsoft used illegal arrangements with buyers to ensure that its disk operating system would be installed in nearly 80 percent of the world's computers. In-depth investigations by the FTC and the Department of Justice followed. In mid-1994, under threat of a federal lawsuit, Microsoft entered a consent decree designed to increase competitors' access to the market. All the parties involved — the original complainants, Micro- soft, and the government — expressed relative satisfaction. But in early 1995, a federal judge rejected the agreement, citing evidence of other monopolistic practices by Microsoft. In a highly unusual move, the Justice Department and Microsoft together appealed the decision. The uncertain future of the case carried the threat of further action against the nation's fifth-largest industry.

See: Chicago School; Clayton Act; Justice Department; Mergers and Acquisitions; Monopoly; Restraint of Trade; Robinson-Patman Act; Sherman Anti-Trust Act; Unfair Competition.