Page:Earle, Does Price Fixing Destroy Liberty, 1920, 144.jpg

144 ways underestimated. The explanation of this is, again, free competition. In order to keep their trade, men have a tendency to underrate possible loss, and to take chances in business with reference to the elements which are uncertain and undeterminable. Thus we have the high percentage of failures in business enterprises, where the preponderating element and distinction necessarily consist of risk taking.

If the Act is to be thus interpreted, Judges will have an impossible task in their instructions to juries in the cases tried before them. They will have to say, in effect:

 "Gentlemen, this is a criminal proceeding; you cannot guess men out of their Liberty; you must have evidence that satisfies you, beyond any reasonable doubt, that the defendant, in dealing with matters looking largely to the future, and about which no one can be guided except by surmise or guess, didn't guess at all, but correctly drew deductions from the known facts and circumstances, which could not be known at the time he acted. You must be guided by the knowledge and experience of the ordinary reasonable business man in determining that the defendant, beyond every reasonable doubt, drew improper deductions from known facts in fixing the prices of the necessaries in which he deals.  You must be careful, however, to remember that it was impossible for him to know all these essential facts, and that the common deductions of the ordinary man upon such matters are, to an excessive degree, entirely wrong. You are also to remember that as one section of the Act, itself, provides, in supplying the President of the United States with funds for business purposes, that such funds are recognized as  'revolving'  items. That is to say, that business proceeds in a cycle, and, so long as it continues, is never completed, nor its profits really ascertainable. That in such matters the real result is never