Book Event: Antimonopoly and American Democracy

[We have word of the following book event.  DRE]

Antimonopoly and American Democracy, April 22, 2024, 1:30 PM to 03:00 PM.  The Forum at Columbia University, Room 315 (Third Floor), 601 West 125th Street, New York, NY 10027

At this roundtable hosted by the Columbia Center for Political Economy and The Tobin Project, Bill Novak (University of Michigan Law School), an editor and contributor to the book, will join fellow contributors Richard John (Columbia Journalism School), Kate Andrias (Columbia Law School), and Tim Wu (Columbia Law School), to discuss how antimonopoly has figured importantly in the history of American democracy, and what lessons this history may hold for the challenges of market power, economic concentration, and democracy that we confront today. Center Co-Director Suresh Naidu (Columbia University) will moderate the discussion.

[The discussion] will address the deep links between concentrated economic power and durability of meaningful self-governance in American history; the wide range of places where monopoly power was seen as a threat, and the similarly wide range of tools and techniques that people across the society wielded to push back against these perceived threats, especially the ways tools of politics beyond antitrust law have been wielded in democratic politics.

This event is free and open to the public. It will not be livestreamed but is to be recorded and released publicly later.  Register here.

Nachbar on Politically Dynamic Competition

Thomas Nachbar, University of Virginia School of Law, has posted Politically Dynamic Competition:

James Landis (LC)

There is a live debate going on over whether antitrust should take a broader view of the economics of market concentration. When antitrust reformers like Lina Khan (Chair of the Federal Trade Commission) argue for a return to “Brandeisian” approaches to antitrust, they offer arguments sounding in the economics of dynamic competition (in opposition to the currently dominant approach to antitrust: the consumer welfare standard frequently attributed to Robert Bork). But their real argument is not about the economics of efficiency; it’s about the relative roles of government and business in the structuring of competition.

This tension has been at the root of trade regulation since the inception of nationalized trade regulation during the British mercantile order. Couching political disputes such as these in the rhetoric of technical expertise is not new; it was a major part of the movement (James Landis’s “administrative process”) underlying the creation of the larger administrative state of which Federal Trade Commission is only a part. But the FTC has never fit comfortably in the technocratic approach to administrative regulation, and recent proposals by antitrust regulators only highlight why.

When understood in political rather than technical terms, the current battle over the politics of both innovation and competition highlights the inherently political role of politically insulated agencies like the FTC. Although ostensibly appealing to the technical application of economic concepts like the choice between static and dynamic competition, the FTC’s arguments for increased deference to determine what types of conduct constitute “unfair methods of competition” have implications that go far beyond the ambit of economics. Claims by antitrust enforcers that they should have stronger antitrust law to enforce (and more power to interpret antitrust law) should be viewed not through the lens of economics but instead through the lens of the political and constitutional order. That much was clear in 1624, when the Statute of Monopolies was adopted, and 1914, when the Federal Trade Commission Act was; it should be equally so today.

Political claims are hardly new to antitrust, although relative stability in antitrust scholarship since the late 1970s has misled many to think those political questions had been resolved. Antitrust has been dominated over the last forty-five years by seemingly technical, neoclassical microeconomics, but the privileged placement of such concerns has been the product of a separate, political commitment: the consumer welfare standard. The consumer welfare standard is best seen not as a statement about economics but about antitrust’s role in the political, regulatory order. The current attack on the consumer welfare standard is clearly political; its defense needs to be political as well.

--Dan Ernst

Antimonopoly and American Democracy

New from Oxford University Press: Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak, both of the University of Michigan Law School.  TOC is here.

Americans today worry about concentrated power in private industry to an extent not seen in generations Not only do they find diminished diversity of service-providers and producers, but they are disquieted by the power of a few large companies to shape and constrain democratic processes. Americans across the political spectrum, from former President Donald Trump to Massachusetts Senator Elizabeth Warren, have sounded alarms about the overlarge power of business in both public and private life. While many of the technologies and industries that worry Americans are new, the concerns they've raised are not unprecedented.

Antimonopoly and American Democracy traces the history of antimonopoly politics in the United States, arguing that organized action against concentrated economic power comprises an important American democratic tradition. While prevailing narratives tend to treat monopoly as a risk to people mainly in their roles as consumers--by causing prices to increase, for example--this study broadens the conversation, recounting ways in which monopolism can hurt ordinary people without directly impacting their wallets. From the pre-revolutionary era to the age of Big Tech, the volume explores the effects that historical monopolies have had on democracy by using their wealth and influence to dominate electoral politics and regulation. Chapters also highlight a range of sites of economic concentration, from land ownership to media reach, and attempts at combating them, from labor organizing to constitutional revision. Featuring original scholarship from some of the world's leading experts in American economic, political, and legal history, Antimonopoly and American Democracy offers important lessons for our contemporary political moment, in which fears of concentrated wealth and influence are again on the rise.

--Dan Ernst

Werner on the Tobacco Trust

George F. K. Werner, a student at Duke Law School, has posted his note in the Duke Law Journal, Norm Commandeering and the Tobacco Trust: 

(NYPL)

In the early 1870s, Durham became a major center of tobacco marketing. Farmers brought their crops to auction warehouses, which then sold them to the town’s manufacturers. This was a process facilitated by a well-developed system of social norms. But the formation of the American Tobacco Company’s “tobacco trust” in the 1890s threatened that arrangement—buyers conspired to pay less per pound of tobacco, and warehousemen lost the ability to police buyers’ conduct. When farmers attempted to organize in response, geographic and social distance caused their efforts to fail. By the time federal courts dissolved the trust in 1911, the damage had already been done. This Note’s historical analysis will be relevant for scholars of both informal ordering and competition law. For the former, it shows that some norm systems depend on the presence of competition. Informal ordering can, of course, also be a response to a lack of competition. But the possibility of collective action problems means that attempts to organize in reaction will often fail. For scholars of competition law, the possibility of norm commandeering provides a concrete example of how concentrated market power can affect economic and social dynamics.

--Dan Ernst

Weekend Roundup

• 
  Kate Masur, Northwestern University, discussed on Professor Masur's Until Justice Be Done on Crooked Media's Strict Scrutiny podcast.
  

• Long ago, we wrote a seminar paper on the coroner in England and New Hampshire, so our pulse quickened when we learned that the Australasian Legal Information Institute has brought online the Australian Coronial Law Library “The free access Library on AustLII provides an expansive perspective on the coronial function over at least the past twenty years.”  More.  DRE.
  

• Last month, the Historical Society of the District of Columbia Circuit held a reenactment of the argument in United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), “the first federal major appellate court opinion to address application of traditional ‘old economy’ antitrust rules to the new, dynamic and fast-paced technology markets of the late 20th Century.”  Two of the judges who presided at the original argument also presided over the reenactment.  A recording of the event is now available.
  

• Berkeley Law's announces its new faculty members, including the legal historian José Argueta Funes.
  

• New from the American Journal of Legal History and Oxford Academic: Our Practice Has a Superiority:’ Debt Enforcement, Bills of Exchange, and Credit in Eighteenth-Century Glasgow, by Hunter Harris, Postdoctoral Research Fellow, Nuffield College, University of Oxford.
  

• The Lawbook Exchange’s new catalogue of Scholarly Law & Legal History is here.
  

•  ICYMI: Henrietta Lacks’s family reaches settlement in extracted cell lawsuit (WaPo).  Behind the scenes at the American Historical Review (AHA).  The Brennan Center for Justice on the history of Supreme Court appointments.  The New York Times reviews the exhibit "Black Americans, Civil Rights and the Roosevelts," which opened earlier this summer at the FDR Library and Museum.    Joseph Patrick Kelly on Ku Klux Klan Acts (The Conversation).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Carstensen on the Chicago Board of Trade Case

Peter Carstensen, University of Wisconsin Law School, has recently posted a classic study, which previously circulated as a working paper, of a landmark of antitrust history, The Content of the Hollow Core of Antitrust: The Chicago Board of Trade Case and the Meaning of the "Rule of Reason" in Restraint of Trade Analysis:

Louis D. Brandeis (NYPL)

Antitrust law's rule of reason for determining the validity of contracts in restraint of trade is enigmatic at best. A primary source of its contemporary Delphic character is the common understanding of the Chicago Board of Trade decision, one of the few cases in which the Supreme Court has upheld a restraint as reasonable. Using several potential meanings for the rule of reason, this study examines the factual context of the case, the record made by the parties, their legal and factual arguments to the Supreme Court, and the contemporaneous state of the law. The objective is to determine what rule of. reason was being employed in the case. The factual evidence established that the most likely explanation for the restraint was that it was to facilitate and protect from opportunistic exploitation the efforts of the members of the Board who were collectively creating a more efficient market system for certain classes of grain. Moreover, the legal arguments of the parties show that the characterization of the function of the restraint was a crucial issue in the case. Finally, a defense of reasonableness based on the ancillarity of a restraint to some other primary transaction or activity among the parties is entirely consistent with the then existing case law. In combination, these considerations show that the rule of reason employed in the case was not the open-ended balancing test commonly supposed, but a focused inquiry into the function of the restraint and its relationship to the joint productive activities of the parties. Therefore, when read in context of the record, argument and relevant case law, the Board of Trade decision does not provide a basis for making the rule of reason the unstructured hollow core of antitrust law. 

--Dan Ernst

Argument in US v. Microsoft to be Reenacted

[We have the following announcement.  DRE.]

The Historical Society of the District of Columbia Circuit presents the second program in its series of Judge Patricia M. Wald Programs on Life and Law in the Courts of the D.C. Circuit, United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

This program will reenact a portion of the argument in the Microsoft case, specifically whether the integration of Internet Explorer into the Windows operating system constituted anticompetitive conduct and whether a Section 2 violation can be established solely by proving anticompetitive conduct. Judges Ginsburg and Tatel, members of the en banc panel in 2001, will hear the reenacted arguments. A panel of experts will then discuss the Microsoft decision and its continuing impact on antitrust enforcement in today’s important and controversial technology markets.

Setting the Stage:
Douglas Melamed, Scholar in Residence at Stanford

Reenactment:
Douglas H. Ginsburg, Judge, U.S. Court of Appeals for the D.C. Circuit
David S. Tatel, Judge, U.S. Court of Appeals for the D.C. Circuit

Kristen C. Limarzi, Gibson Dunn & Crutcher LLP
David I. Gelfand, Cleary Gottlieb Steen & Hamilton LLP

Panel Discussion:
Moderator: William Baer, Visiting Fellow, Brookings Institution
Panelists: Professor Melamed, Maureen K. Ohlhausen, Partner, Baker Botts LLP, David C. Frederick, Partner, Kellogg, Hansen, Todd, Figel & Frederick, PLLC will join Judges Ginsburg and Tatel.

Wednesday, June 7, 2023, 4:30 p.m. – 6:00 p.m., Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.  Admission is free. Reservations are suggested, here.  A reception in the Courthouse Atrium with light refreshments will follow the program.

Andrias on Labor's Antimonopoly Vision

Kate Andrias, Columbia Law School, has posted Beyond the Labor Exemption: Labor's Antimonopoly Vision and the Fight for Greater Democracy, which is forthcoming in Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak (Oxford University Press):

Although the labor movement and the antimonopoly movement both oppose concentrated economic power and bemoan rising inequality, their projects are frequently viewed as divergent, if not incompatible. After all, courts have long used antitrust law against workers’ collective activity, and antimonopoly advocates have tended to deemphasize problems of class, focusing on breaking up business in ways that do not necessarily provide workers more power. This Essay shows, however, that the industrial unions of the early and mid-twentieth century saw themselves as antimonopoly advocates. They sought not only to free workers’ collective activity from antitrust law’s sanction, but also to advance an affirmative antimonopoly agenda. Yet their agenda was different in important respects from that of prominent antimonopolists, including Louis Brandeis: Labor’s focus was not on making business smaller, but rather on building workers’ countervailing power and increasing democratic control over the workplace and the economy, through a range of strategies including industrial organizing; changes to antitrust, tax, and banking policy; new forms of national economic planning; and public control of key industries. By examining labor’s antimonopoly vision beyond the struggle for a labor exemption, this Essay draws a more complicated picture of the American antimonopoly tradition—one that challenges the dominant narrative about the relationship between labor and antitrust and enriches our understanding of what the Progressive and New Deal-era antimonopoly vision entailed. It also suggests that, to unite the interests of workers, consumers, and citizens, the primary focus of a reform agenda going forward ought not be the size or even the market power of the firms in question, although those are certainly important factors, but rather the degree to which firms’ autonomy and power are democratically constrained either by the public or by the firms’ workers—in short, a program for greater democracy.

--Dan Ernst

Federal History 14

Federal History 14 (2022), the journal of the Society for History in the Federal Government, has been published.  Here’s the TOC:

Editor’s Note
        — Benjamin Guterman

Roger R. Trask Lecture
        — Arnita Jones

Articles

A Clash of Principles: The First Federal Debate over Slavery and Race, 1790
        — Paul J. Polgar

From Conspiracy to Policy: James V. Martin, the “Air Trust” Narrative, and the 1926 Air Commerce Act
        — Sean Seyer

“Substantive Accomplishments”: Richard Nixon, High School Student Environmentalists, and the President’s Environmental Merit Awards Program
        — Neil Buffett

The Contribution of U.S. Military Advisors in the Dominican Republic to Operation Unified Response, Haiti Earthquake Relief, 2010
        — Bradley Lynn Coleman

Interview

An Interview with Kelly J. Shannon
        — Alexander Poster

Roundtable

From Selma to Moscow: How Human Rights Activists Transformed U.S. Foreign Policy by Sarah B. Snyder
        – Introduction by Paul Adler
        – Review by Theresa Keeley
        – Review by Robert Rakove
        – Review by Matthew K. Shannon
        - Response by Sarah B. Snyder

   Recent Publications

        Human Rights–A Select List

Weekend Roundup

• 
  A recording of Jerome Frank: The Making of a New Deal Lawyer, the 2022 Maurice and Muriel Fulton Lecture I delivered at the University of Chicago Law School last month, is now available.  DRE 
  

• "On Agriculture & Antitrust: A Brief Summary of Legislative History," an illustrated white paper by  Jonathan Coppess, Department of Agricultural and Consumer Economics, University of Illinois, is here.
  

• New online in the AJLH and on Oxford Academic: Millionaires Against Billionaires: The Rise and Fall of the Private Plaintiff Antitrust Lawyer, 1946–1976, by Peter Labuza.
  

• In December 1980, Richard A. Posner and George J. Stigler advised Ronald Reagan’s transition team how the new president could “throttle back on antitrust enforcement.” Read it here.
  

• "How Japanese Americans Fought for—and Won—Redress for WWII Incarceration," by Mitchell T. Maki (History).
  

• Where to begin on the historians' engagement with Justice Alito's draft opinon in Hobbs?  In the NYT with The Fight Over Abortion History and/or its ten-book reading list? With Treva B. Lindsey’s Abortion has been debated in the U.S. since 18th century U.S. Supreme Court Justice Alito's abortion history lesson in dispute (Reuters)? Bernadette Meyler on LAW360 podcast? In the Atlantic, where Mary Ziegler writes that "The Conservatives Aren’t Just Ending Roe—They’re Delighting in It"? We also took note of Kelly O'Donnell and Lauren MacIvor Thompson's response at History Watch: "It Doesn’t Have to Be the End for US Abortion Rights."

• Also in the Atlantic: Susan J. Pearson (Northwestern University) on "Why Nonbinary Birth Certificates Aren’t All That Radical."
  

• Update: An appreciation of former ASLH President Stanley N. Katz!
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Progressive Era Antitrust: A Seminar at USC Law

 

We've received this virtual poster for what looks to be an very important and interesting seminar at USC Gould Law on November 10.  To participate via Zoom, RSVP to AOpsRSVP@law.usc.edu.

--Dan Ernst

Fisk and Salter on the Law of Playwrights and Theatre Producers

Catherine Fisk, University of California, Berkeley School of Law, and Brent Salter, Stanford Law School, have posted Assumptions about Antitrust and Freelance Work and the Fragility of Labor Relations in the American Theatre, which is forthcoming in the Ohio State Law Journal:

Lee Shubert (NYPL)

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era. The revival of theatre after the catastrophe of the pandemic provides an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped organizational structures and mediated relations between stage producers and writers:

Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.

Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.

Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Assumption #1), but it is affirmatively prohibited by federal antitrust law.

Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.

This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, and how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt. The history shows why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.

--Dan Ernst

Hoffman on Competition Law and Canadian Identity

C.P. Hoffman, FreeState Justice, has posted “The Mother of Combines”: Representations of the United States in Early Canadian Discourse on the Combines Problem and the Formation of Canadian National Identity, which is forthcoming in the Canadian Journal of Law & Society:

Nathaniel Clarke Wallace (wiki)

In late 1887, Canada was swept up in a fervor over the impact and scope of so-called “combines”, a blanket term used to cover price-fixing schemes, pool agreements, trusts, and other cartel and monopoly arrangements. The public debate that ensued ultimately led to the passage in 1889 of the Anti-Combines Act, the world’s first modern competition statute, enacted a year prior to the United States’ more famous Sherman Antitrust Act. But while in this case Canada acted before its neighbor to the south, the United States remained omnipresent in public and parliamentary debates on the combines problem. Canadian discourse referred to the United States in at least four ways during the combines debates: as a benchmark against which the Canadian economy and the combines problem should be judged; as a model for potential legal action, as a potential economic liberator through the power of free trade; and as the very source and propagator or the combines problem. Canadians thus alternately presented the United States as savior or devil, as paragon or antithesis. The result was a paradox of a sort: Canadians borrowed American ideas in order to avoid becoming American.

–Dan Ernst

Wu's New Deal Supplement to "Curse of Bigness"

Timothy Wu, Columbia Law School, has posted material on antitrust policy in the mid-twentieth-century United States cut from The Curse of Bigness: Antitrust in the New Gilded Age and entitled The Curse of Bigness: New Deal Supplement.  It's a synthesis following the conventional periodization of New Deal competition policy, with a substantial discussion of Alcoa.  he writes, "It is meant to be read together with the larger volume, but can also be read separately."

--Dan Ernst

Avi-Yonah on Antitrust and the Corporate Taxation, 1909-1928

Reuven S. Avi-Yonah, University of Michigan Law School, has posted Antitrust and the Corporate Tax, 1909–1928:

Lincoln Steffens (NYPL)

Between the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914, the question of what to do about “trusts” dominated American political life. Before 1889, the dominant form of amalgamating competing businesses was the trust, because corporations could not hold shares in other corporations, and instead the shareholders would exchange their shares for trust certificates. But in 1889 New Jersey (the “traitor state”, according to muckraking journalist Lincoln Steffens) changed its corporate law to allow for holding company structures, setting of a great wave of amalgamations in areas like oil, tobacco, sugar and steel.

This paper will focus on one attempt to address the “trust problem” by means other than the Sherman Act (which faced some resistance in the courts, as the government lost the E.C. Knight case in the Supreme Court in 1895 and barely won the Northern Securities case in 1905). This was the corporate tax act of 1909, which as will be seen below, was primarily intended as an antitrust measure. However, after the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax was less needed as an antitrust measure, and between 1919 and 1928 its antitrust features were largely eliminated.

–Dan Ernst

Paul on Judicial Supremacy in Antitrust

Sanjukta Paul, Wayne State University Law School, has posted Reconsidering Judicial Supremacy in Antitrust:

This paper reconsiders the foundations of judicial supremacy in antitrust, which rests ultimately upon the claim that the Sherman Act is a "common law statute." The common law statute thesis is that Congress delegated to judges the power to invent the criteria by which the law will allocate economic coordination rights under antitrust law. But Congress intended no such fundamental delegation of law-making power to the judiciary, as a reconsideration of the legislative history — informed by an examination of the concepts invoked in key legislative deliberations — shows. Notably, the massive influence of Chicago School law and economics in the domain of antitrust law has been underwritten by this judicial self-empowerment.

–Dan Ernst

"New Perspectives on Regulatory History"

The latest issue of Business History Review (93:4) is a special issue, New Perspectives in Regulatory History.

Introduction: New Perspectives in Regulatory History, by Laura Phillips Sawyer and Herbert Hovenkamp

Institutional Economics and the Progressive Movement for the Social Control of American Business, by William J. Novak, with a comment by Susie J. Pak

Anti-Competition Regulation, by Anne Fleming, with a comment by Rebecca Haw Allensworth

The Curious Origins of Airline Deregulation: Economic Deregulation and the American Left, by Reuel Schiller, with a comment by Lily Geismer

A Premature Postmortem on the Chicago School of Antitrust, by Daniel A. Crane, with a comment by Lina M. Khan

Prisms of Distance and Power: Viewing the U.S. Regulatory Tradition, by David J. Gerber.

The issue also includes the review essay, Corporations, Democracy, and the Historian, by Richard R. John.

--Dan Ernst

Meese on Wickard and Antitrust

Alan J. Meese, William & Mary Law School, has posted Wickard Through an Antitrust Lens, which appeared in the William & Mary Law Review 60 (2019): 1336-1393:

For several decades, the Supreme Court employed the direct/indirect standard to police the boundary between mutually exclusive state and federal power over intrastate conduct affecting interstate commerce. Under this regime, Congress possessed exclusive authority over intrastate conduct that affected interstate commerce directly, leaving states with exclusive authority over intrastate conduct that produced only indirect effects. The Supreme Court read the direct/indirect standard into the Sherman Act during the 1890s, holding in United States v. E.C. Knight and other decisions that the statute only reached intrastate restraints that impacted interstate commerce directly. Impacts were direct, in turn, if the restraint exercised market power to the detriment of out-of-state consumers. Intrastate restraints that produced only indirect effects fell within the exclusive authority of the states.

Wickard v. Filburn famously jettisoned the direct/indirect standard in 1942, holding that Congress could reach any conduct that produced a “substantial effect” on interstate commerce, even if such effects were indirect or fortuitous. Later in the same decade, in Mandeville Island Farms v. American Crystal Sugar, the Court read Wickard’s substantial effects test into the Sherman Act, holding that the statute reached purely local restraints producing indirect but “substantial” impacts on interstate commerce.

Wickard offered three critiques of the direct/indirect standard, critiques echoed by Mandeville Island Farms. First, Wickard claimed that the Court had almost always applied the direct/indirect standard when reviewing Commerce Clause challenges to state legislation, only rarely employing the test to invalidate an Act of Congress as exceeding the scope of the Commerce power. Indeed, the Court claimed that only five post-E. C. Knight decisions had invalidated congressional statutes as exceeding the scope of the commerce power, three during a two year period (1935-36). Second, Wickard claimed that the direct/indirect standard was “mechanical” and obscured judicial inquiry into the actual economic impact of the conduct Congress sought to regulate. Third, Wickard claimed that decisions applying the direct/indirect standard during the first third of the 20th Century did so under the sway of the discredited E.C. Knight decision and had co-existed with a parallel set of decisions, beginning with the Shreveport Rate Case, that took a more expansive approach to congressional authority. This alleged doctrinal ambiguity attenuated the precedential force of decisions that had applied the direct/indirect standard. 

It is no surprise that Mandeville Island Farms and subsequent Sherman Act decisions drew upon Wickard when discerning the scope of the Sherman Act vis a vis local restraints. This essay “flips the script” and asks “what if” Wickard had looked to Sherman Act precedents for guidance regarding the scope of the Commerce power. The essay contends that the Court’s experience with application of the direct/indirect standard in the antitrust context undermines Wickard’s critiques of that regime. For instance, inclusion of the Court’s antitrust federalism case law more than doubles the number of pre-Wickard decisions that refused to apply a federal statute to conduct generating a substantial economic effect on interstate commerce, thus falsifying Wickard’s claim that only two decisions between E.C. Knight and the New Deal enforced limits on Congressional power. Moreover, the antitrust federalism decisions were not “mechanical” or otherwise insensitive to the actual economic effects of challenged conduct. Instead, each such decision reflected a fact-intensive effort to determine the actual impact of the conduct in question, asking whether the restraint visited harm on citizens in other states. Finally, the Court’s pre-Wickard antitrust federalism decisions rarely cited E. C. Knight, and then only for the purpose of distinguishing or narrowing the decision so as to allow the Sherman Act to reach intrastate transactions producing interstate harm. These decisions were fully consistent with the Shreveport Rate Case, which held that Congress could preempt state regulation of intrastate rates that threatened to “injure” interstate commerce, by “directly interfering” with interstate rates. Indeed and ironically, a thorough understanding of the Court’s pre-New Deal antitrust federalism decisions helps generate a more enduring and plausible rationale for the result in Wickard, a rationale that does no violence to the constitutional order that Wickard repudiated.

--Dan Ernst.  H/t: Legal Theory Blog

Weekend Roundup

• With the help of Michael J. Wishnie and his clinic students at Yale Law School, a powerhouse group of legal historians has submitted an amicus brief to the U.S. Supreme Court in Department of Homeland Security v. Thuraissigiam. Signers include Lauren Benton, Barbara Aronstein Black, Paul Brand, Kevin Costello, Christine Desan, Lisa Ford, Eric Freedman, Robert Gordon, Thomas Green, Paul Halliday, Hendrik Hartog, Elizabeth Papp Kamali, Stanley Katz, David Lieberman, Michael Lobban, Bernadette Meyler, Eben Moglen, Hannah Weiss Muller, James Oldham, Wilfred Priest, Jonathan Rose, David J. Seipp, and John Fabian Witt.  

• In the op-ed pages of the Los Angeles Times: Sarah Barringer Gordon (University of Pennsylvania) and Kevin Waite (Durham University) on "California's Forgotten Slave History."

• From the Washington Post's "Made by History" section: Mary Ziegler (Florida State University College of Law) on how it came to be that "both sides in the abortion fight now claim to be for women’s equality"; Monica Kristin Blair (Ph.D. candidate, University of Virginia) on "What the Supreme Court missed about Wednesday’s religious-schools case"; Andrew Urban (Rutgers University) on what the deportation of an Iranian student shows about "the unchecked power of Customs and Border Protection"; Reva Siegel (Yale Law School) and Stacie Taranto (Ramapo College of New Jersey) on "What antiabortion advocates get wrong about the women who secured the right to vote"; and more.

• The Ipse Dixit podcast has posted an episode on antitrust history, featuring Christopher L. Sagers (Cleveland-Marshall School of Law).  

• HNN's interview of Chilton Varner, the president of the Supreme Court Historical Society, is here.

• Martti Koskenniemi presents "What is the History of International Law a History of?" to the  EuroStorie research seminar at the University of Helsinki on January 31.  More.

• Via HNN, here is a report on an American Historical Association panel on the history of presidential misconduct, with Kathryn Olmstead, Kevin M. Kruse, Jeremi Suri, and James M. Banner, Jr., based on the book, Presidential Misconduct: From George Washington to Today, ed. Banner (New Press, 2019). 

• Andrew Delbanco, the author of The War before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War, speaks at the FDR Presidential Library at 2:00 p.m. on Sunday, February 9, 2020.

• A response to Guest blogger David S. Schwartz's guest blogposts here in December--by Michael Ramsey on the Originalism Blog here, with a response to the response by David Schwartz here.

• ICYMI:  A new exhibit on Gideon v. Wainwright at the Historical Museum of Bay County (Florida).  Brenda Wineapple in WaPo: why Salmon Chase is not a fit role model for John Roberts when presiding over an impeachment trial.  Histories of pettitfogging from NPR and Kellen Funk.  Sheri Chinen Biesen on film censorship from the 1930s to the 1950s in the OAH’s American Historian.  Drake Law hosts the ABA/Library of Congress traveling exhibit, A 100 Years After The 19th Amendment: Their Legacy Our Future.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Kovacic on Pertschuk's FTC Chairmanship

“Competition Policy in its Broadest Sense”: Michael Pertschuk's Chairmanship of the Federal Trade Commission 1977-1981, by William E. Kovacic, George Washington University Law School, is out in the William and Mary Law Review 60 (2019): 1269-1333:

In the late 1960s and through the 1970s, the Federal Trade Commission (FTC) undertook an ambitious program of reforms. Among other measures, the agency expanded the focus of antitrust enforcement to address economic concentration, including the use of Section 5 of the FTC Act to restructure dominant firms and oligopolies. In many ways Michael Pertschuk, who chaired the agency from 1977 to 1981, became the symbol of the FTC’s efforts to stretch the boundaries of antitrust policy—to pursue a conception of “competition policy in its broadest sense.” Despite a number of valuable accomplishments, the FTC achieved relatively few litigation successes, and its efforts aroused political opposition that nearly crippled the institution. The experience of the FTC in the 1970s, and during the Pertschuk chairmanship in particular, offers insights into the implications of future efforts to use the FTC to carry out a sweeping redesign and expansion of U.S. competition policy.

--Dan Ernst