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The Green Bag

this is the only important qualiﬁcation of the test. It would appear that it is not, but that the Court is also bound to accept the public policy underlying the statute, and that a combination

which viewed without reference to the act might be considered perfectly reason able may, when the policy of the act is considered, have to be treated as un

reasonable in order to give due recogni tion to the duty to enforce the statute. This last consideration, in fact, makes

it easier to understand the readiness of the Court, in deciding upon the facts, to declare the Standard Oil Company an illegal combination. If the statute prohibits all acts clearly monopolistic,

permitting no inquiry into their reason ableness or unreasonableness, and leaves

the reasonableness test applicable only within very narrow limits, to acts the

monopolistic nature of which may be in doubt, and which do not clearly come under the ban of the statute, obviously the way is open for declaring unlawful

any act showing an "intent and purpose to maintain the dominancy over the oil industry,” and "to drive others from

the ﬁeld and to exclude them from the right to trade and thus accomplish the mastery which was the end in view.” If the foregoing reasoning is sound, it was not necessary for the Court to say that the power of the monopoly had

really turns on the abnormal methods pursued by the appellant, and the Court treated these methods as unlawful be cause unreasonable in themselves rather than because forbidden by the statute which it was its duty to enforce, the Court begged the question when it

assumed that the underselling of com petitors and other devices to stifle competition are not the usual and normal methods of monopoly. It is also charge able with vagueness in not making clear wherein the practices complained of are unreasonable. Consequently, if the scope of the statute is not rendered very broad by the determination to be bound

by the legislative mandate, it is broad ened by a vague, general notion of ab normal and unreasonable monopolistic practices. In any event, the notion of reasonable and lawful monopoly is so narrowed that any great corporation

dominating its market may have much to fear from the invocation of doctrines which leave little room for the application of the reasonableness test. It is somewhat surprising, therefore,

that the decision has been treated in many quarters as erring on the side of undue leniency to the corporations, as it is merely an initial step in the

direction of an unqualiﬁed test of reason ableness, which may come to be more

fully adopted in subsequent decisions,

been built up otherwise than would have

and as it apparently leaves any potent

arisen “had normal methods been fol

corporation which effectually dominates its market subject to the danger of prosecution. Any such corporation which seeks to avail itself of the defense that while it may have committed acts tending to stiﬁe competition by unusual

lowed,"

and

that

“new

means

of

combination" were resorted to, "wholly inconsistent with the theory that they were made with the single conception of advancing the development of business power by usual methods." In this view of the decision, all that was said

about normal and usual methods not having been followed was mere obiter dicta. If, on the other hand, the decision

or abnormal methods, such methods have

not been typical of its history, may readily ﬁnd itself in the same position as the Standard Oil Company. The uneasiness which may later arise among some great corporations will 0