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 The Editor’s Bag there was a change.

Litigation was

657

and blind to the ﬁner implications of the

begun against combinations falling into

"rule of reason" doctrine, have found

a different class from those previously prosecuted; the Government could suc ceed in these suits only on the theory

the Sherman anti-trust law, as judicially

that the act had a very broad application, and that was the theory of Roosevelt's

administration. The Taft administra tion went still further than the preced ing, launching suits against every con ceivable form of monopoly. The result

of this was that the burden of construing the act was placed squarely on the

shoulders of the Supreme Court, where it will continue to rest until either the act

is amended or the attitude of the admin istration changes. ' The Supreme Court, having long ap plied the act to the cases arising under it, was not now at liberty to declare it void for uncertainty, nor in view of the

altered situation was it free to construe it literally without subjecting itself to the charge of a partisan bias. It rose to the occasion by adhering steadily to

its own precedents and recognizing the will of Congress as controlling, while at the same time it asserted the preroga tive of judicial discretion in the shape of the famous “rule of reason” doctrine. This doctrine was that the statute was to be construed in the light of reason, always with regard to the state of the

construed, in harmony with their own anti-monopoly prejudices, and are bend ing every effort to securing the maximum of convictions under an interpretation of the act which is really their own and

not that of the Court. If they had pene trated more deeply into the inner mean ing of the decisions, they would see that the process of judicial interpreta

tion has but just begun, that they are assuming the illegality of states of fact not yet indisputably under the ban of the statute, that many of their prose cutions cannot succeed, and that they

are subjecting the business of the country to needless anxiety and disturbance. It is obviously a mistake for the ad ministration to maintain that it is per

mitted no discretion in enforcing the law. Where the meaning of the law is in dispute, and the precise purport, even, of the Hrule of reason" doctrine may be uncertain, the administration must act with great circumspection, lest it appear

to adopt a purely partisan interpretation of the statute. Failure to exercise such circumspection can result only in burden ing the courts with unnecessary law suits, and in usurping functions which

law at the time when it was adopted,

lie outside the sphere of executive action. The pending suits will eventually ﬁnd

and to the clearly expressed will of Con

their way to the Supreme Court, and

gress in enacting it. So subtly were conservative and progressive elements

it may be supposed that they will there furnish material for a much needed judicial formulation of the law of free and fair competition. If we were sure

combined in this doctrine that the Court was able to decide the Standard Oil and Tobacco cases with that close approach to unanimity which always affords the best possible evidence of the non-parti sanship of a great Court. Meanwhile the President and his Attorney-General, reading these judicial opinions with attention centred upon

the strict-constructionist element alone,

that Congress were satisﬁed to leave

this work to the Supreme Court there might be something to rejoice over in such a prospect, even though, as Presi dent Taft has himself said, that would be placing too great a burden on the Court. But there are indications that the act may be amended long before