Page:The Green Bag (1889–1914), Volume 22.pdf/315

Rh that some statute should be passed not only in Alabama, but by all the states, making cohabitation or the public assumption of marital relations necessary to the validity of any marriage not contracted in conformity with the statutes of the state?"

"The Clergy and the Marriage Laws." By J. S. Franey. Nineteenth Century, v. 86, p. 554 (Man).

Discussing historical aspects of matters involved in the Deceased Wife's Sister Marriage Act, 1907.

Monopolies. "The Federal Anti-Trust Act." By Robert L. Raymond. 23 Harvard Law Review 353 (Man).

In many respects an admirable article. The Sherman Anti-Trust Act is conceived as so uncertain in its phraseology as necessarily to have led to a remarkable exhibition of judicial legislation. The decisions of the Supreme Court construing the act are carefully analyzed. The actual signiﬁcation of the Sherman Act is then concisely summarized. In consequence, probably every great combination in the country "is liable to prosecution and dissolution under the Anti-Trust Act." Business and law have thus both got into “what it is little exaggeration to call an impasse." And this because the act has been construed as prohibiting combinations simply taking the form of the large corporation.

“The logic of events is certain to bring about a change either by continued judicial construction or by legislation. The enlightened and modern view of the trust problem is that it is an economic question. . ..

“The remediable evils are economic evils. The principle of combination is inherently sound. . . . The real evil of the trusts, it is now generally believed, consists merely in monopoly control; that is, in the power of a combination to do as it pleases. . ..

“The law must strike not at the principle of combination but at monopoly control. This. . . means only that actual and bona fide competition should be given opportunity to enter the field, and that when it has done so it should be fought only by fair and proper methods."

Up to this point the writer seems to be on pretty ﬁrm ground. When, however, he comes to explain just how free bona ﬁde competition is to be maintained, it is to be feared that he may not grasp the fact that the real nub of the evil of monopoly is coercive conduct of which the boycott is an illustration as regards the treatment of competitors, and extortionate price-ﬁxing as regards the treatment of consumers. The problem is not that of maintenance of competition, but that of maintenance of freedom to enter the ﬁeld of competition-two things which are anything but synonymous. Entire freedom of competition involves freedom of combination, as Mr. Raymond perceives, but it likewise implies freedom to crush competition. and where competition is suppressed without coercion, fraud, or extortion, the courts have no right to declare that there has been a “restraint of trade."

It may seriously he questioned, therefore, whether Mr. Raymond is right in concluding that the Anti-Trust Act ‘performed a tremendously valuable service ‘in reparing the way for more just regulation," an whether, "in so far as it covers loose combinations," i.e., those where there is not a single corporation, it "is a piece of ﬁnal and complete legislation."

"The Sherman Anti-Trust Act and Industrial Combinations." By Herbert Noble. 44 American Law Review 177 (Man-Apr).

Read at the last annual meeting of the Maryland State Bar Association.

"That competition, free and unlimited, is the life of trade is a pat phrase which rolls from the 1i 5 of the orator in high sounding periods. I literally applied, no partnerships would be possible, no combinations of capital could be made, no combined methods of distribution established.

Unlimited competition is not desirable. . . . "One constantly sees the expression that a combination to maintain prices is, of course. unlawful, because com tition is thereby directly restrained, and t t the object of the Sherman act is to maintain free and untrammeled competition. Attention is called to the fact that there is not one word in the act about competition, and that all that is said in the cases about the act being passed for that purpose is a matter of 'udicial interpolation. The act prohibits irect restraints of interstate trade, but it does not follow at all that all restraints of competition, whether of other persons’ business on the one hand or self-imposed on the other are prohibited. . ..

“The proper construction of the act is that it makes unlawful only those contracts, combinations, conspiracies or acts—

"(0) which directly, immediately and necessarily restrain interstate trade or commerce to such an extent that the public is thereby injured; or

“(b) which restrain the trade of another, such as the driving of a rival out of business; or

“(0) which restrain the trade of another, as

in the Danbury Hatters’ case, by boycott; or “(4) which result in the suppression of competition between the parties thereto without leaving substantial competition in the trade; or

“(e) which amount to a monopoly in the ﬁeld to which they relate, whether done as the result of the act of a single person or of a combination."

“Prosperity with ]ustice—-Working Toward a Solution." By Judge Peter S. Grosscup. North American Review, v. 191, p. 311 (Man).

“First: Let there be a valuation of each of the railway pro rties (I take the railway properties as an ilustration onl ), rejecting ‘the cost of reproduction’ as the measure, but takin as the measure what it fairly cost to bring these railroads to their presen