Evening star., 1938-02-20

Rule of Reason" Viewed
as One of Obstacles
to Regulation.

behavior is the test Of unlawful mo-
nopoly. This il the familiar doc
trine Of good trusts and bad trusts.
Under such q doctrine it Is possible
for q concern to dominate an entire
industry. and eliminate competition,
yet not be in An unlawful monopoly
This doctrine Of good trusts and bad
trusts was but . development Of the
rule Of reason, where the Supreme
Court held that not every combina-
ton In restraint Of trade, As the statute
distinctly reads, Is q violation Of Law,
but only those combinations which
'unreasonably' restrain trade.
"nUT Of this Interpretation Of the
laws made by Congress has
grown all the confusion. the looseness,
the uncertainty. that has encouraged
the development Of monopolistic prac-
tices. safe from the law, in this land
Under the administration Of Theo-
dore Roosevelt some OF the trusts were
prosecuted while others were not
molested. The Standard OH Co. COM
bination was proceeded against, but
the United States Steel Corp. was not
disturbed until during the Taft ad-
ministration. Theodore Roosevelt vas
q vigorous advocate OF the doctrine
Of reasonable restraint Of trade held
BY the minority Of the Supreme Court
In certain cases, and he was 30 far
convinced that the steel corporation
was . good trust that he approved its
acquisition Of the Tennessee Coal &
Iron Co. during the panic Of 1907.
"President Taft, On the other hand,
allowed his disagreement with the
philosophy Of his predecessor when
he stated IN . message to Congress: !:
I venture to think that this Il to put
into the hands Of the court . power
impossible to exercise on any con.
sistent principle which will insure the
uniformity Of decision essential to best
judgment. It u to thrust upon the
courts 4 burden they have no prece-
dents to enable them to carry, and
to give them = power approaching the
arbitrary. the abuse Of which might
involve our whole judicial system in
disaster He, was referring, of course,
to the power the Supreme Court had
taken Of injecting into the case the
question Of the 'reasonableness' of
the combination under trial.
We have, a. matter Of fact, been
operating for some Is years under In
amendment which Congress has sane.
toned only by its silence, and which
It formerly refused to sanction BY
legislative enactment. Nothing that
any outside critic of the court could
say can match in vigor and logic the
dissenting opinion Of Justice Harlan
VINO charged. The court by its deci-
saon. when interpreted by the Language
OF Its opinion, has not only upset the
lons-settled Interpretation Of the act
but has usurped the constitutional
functions Of the legislative branch oi
the Government. With all due re.
spect for the opinion Of others, / feel
bound to say that what the court haa
said may well cause some alarm for
the integrity Of our institutions
1.-TWO years before. Senator Nelson,
on behalf Of the Senate judi
ciary Committee. had reported on q
bill amending the Sherman antitrust
law and said that TO inject into the
act the question Of whether an agree
ment or combination 10 reasonable or
unreasonable would render the act a.
. criminal or penal statute indefinite
and uncertain, and hence. to that ex-
tent, utterly nugatory and void, and
would practically amount to . repeal
Of that part Of the oct. And while the
same technical objection does not ap-
ply 70 civil prosecutions, he went on,
the injection Of the rule Of reason
ablsnebs q unreAsonablenew would
lend to the greatest variabieness and
uncertainty In the enforcement Of the
law Yet, Notwithstanding this atti-
tide q Congress, of the President and
the prior attitude Of the Supreme
Court itself, les than two years later
the Supreme Court reversed itself and
held that the Sherman act did not
inhibat every combination in re-
stratnt Of trade, a. ito terms provide,
but only such combinations q are In
unreasonable restraint Of trade"
but are these not direct examples
Of the invasion BY the judiciary Of the
constitutional domain Of Congress?"
Exactly. And It has practically rem
dered null and void our laws against
monopoly and monopolistic prae-
taces. II makes It practically impoasi-
~ to prosecute such eases, for. how
I00A 1A0QlQ1f6Y. PAaa CESS