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THE GREEN BAG

THE PERPETUATION OF THE OPEN MARKET BY BRUCE WYMAN Of the Faculty of Law in Harvard University

I EVEN to the most superficial observers of current events it is clear that the competitive system is much threatened from many quarters. Undoubtedly the indus trial order in the first half of the twentieth century is going to be a different thing from the business organization of the first half of the nineteenth century; but whether this change is to be one in kind or one merely in degree remains to be seen. At the pres ent moment despite adverse movements the substance of competition is still to be found in the general course of most of industrial activities for the greater part of the time. This condition can be maintained if all of the conservative forces of society are ex erted; and among these one of the most potent is the law. The courts are manifesting the greatest activity at the present time at various points where the disturbing force of the predatory combination is making itself felt. And there is now much law by which outrageous action by a combination may be stopped. There are, however, many ques tions of law in relation to such action that are in dispute. One of these problems it is proposed to discuss in this article, as it is one of the most pressing of those that are undetermined. The issue involved is whether there is a difference between the methods in competition which may be em ployed by an individual and the course of action that may be taken by a combination in competition. More precisely the question is whether a combination engaged in com petition may refuse to have any business dealings with those who continue to have commercial relations with its rivals. For it is obvious that if the combination be permitted to compete in this way, the ruin of the rival, thus cut off from his sources

of supply, will result in numberless in stances. As to this, the combinations at the present day defy the courts to declare such a course of action to be illegal, however oppressive it may be. II The general legal theory of the most ac curate observers of these current industrial phenomena is that every person engaged in business has a legal right to his trade; con sequently those who interpose themselves between a trader and the persons who would deal with him commit a prima facie tort by this very interference. By this theory every one who intermeddles with the business relations of another is put to his justification; among the initiated, therefore, the problem of legal ity has become a question of justification. A man who urges his friends to stop dealing with his enemy by this theory is liable for the damage caused by his intermeddling, since his motive is bad; but a tradesman who persuades a customer to stop buying of his rival has a justification by obvious policy, for by general principle fair competition is a complete justification, since its operation is held to be for the best interests of society. This general theory is already established by the weight of modern authority, although there persists a respectable dissent. The nature of this business right is ex cellently stated in a recent case, Jersey City Printing Company v. Cassidy, 63 N. J. Eq. 759. In that case the court was challenged to define its right to issue an injunction at the prayer of an employer to restrain the defendants, former employees then on strike, from unlawful interference with scabs who were seeking to take the places of the strikers. Vice-Chancellor Stevenson stated the right of the complainant substantially as follows: