Details

Autor(en) / Beteiligte

• Paul, Sanjukta

Titel

Recovering the moral economy foundations of the 'Sherman Act'

Ist Teil von

• The Yale law journal, 2021-10, Vol.131 (1), p.175-255

Ort / Verlag

Yale University, School of Law

Erscheinungsjahr

2021

Link zum Volltext

Quelle

Business Source Ultimate

Beschreibungen/Notizen

• This feature deepens and seeks to provide a foundation for the current broadening in the antitrust debate and, ultimately, in adjacent areas relating to market organization. As normative reconstruction, it may help guide current reform efforts as well as the interpretation and implementation of the existing antitrust laws. The feature traces a thread beginning with the "moral economy" origins of antitrust and the common law of restraint of trade; continues through the American antimonopoly coalition's distinctive and egalitarian moral economy vision; and culminates in a re-interpretation of the legislative history of the 'Sherman Act', both as to affirmative purpose and as to judicial role. I propose a core prescription: the command to disperse economic coordination rights. This core prescription in turn implies three key tasks: taking affirmative steps to contain domination, to accommodate and promote democratic coordination, and to set rules of fair competition. The normative thread traced here, culminating in an argument about legislative purpose, is interwoven with an argument about institutional roles. The widely held conventional wisdom is that the 'Sherman Act' is the paradigmatic "common-law statute," entailing a delegation of lawmaking power by Congress to the courts that spans the field of antitrust. The common-law-statute thesis is more than just the proposition that the courts should guide the application of the law as circumstances change. Instead, it has been understood as an effective "blank check" to federal courts to generate the foundational normative criteria according to which the statutory framework will function. But the legislative history of the 'Sherman Act' undermines both the argument for judicial supremacy and the particular prescriptions with which the most pronounced, current episode of judicial lawmaking has been associated. Finally, the feature briefly sketches the broad outlines of an alternative path for implementing antitrust's core prescription, emphasizing the potential role of the Federal Trade Commission in administering the moral economy.