CHAPTER I
(1) What restraints of national trade do the Anti-Trust Acts make illegal? (2) What monopolies are condemned by them?
The wording of the Sherman Act is clear and comprehensive. It reads: "Every contract, combination, or conspiracy;" "every person who shall monopolize or attempt to monopolize," and "any part of the trade." etc.
This is certainly broad enough. It says nothing about "reasonable restraints," or "indirect restraints" being excepted; though the Supreme Court has consequently held that "reasonable restraints were not excepted, while, nevertheless, "indirect restraints" were!
This may seem serious and illogical, but, to anticipate a little, it is not, being but a matter of confusing terminology.
Whether serious or not, it is as to ultimate results, and a clear understanding, exceedingly important to determine (1) whether the Act really makes all restraints of trade illegal; and (2) whether, if so, it in this respect exceeds the common law.
The unhesitating reply is, that, regarding substance, and not mere nomenclature, the Act both says and means "every;" and that in so saying and meaning it but applies the rule of the common law to the Nation's efforts to protect its own trade.
This statement can hardly go unchallenged, in view of many opinions of the Supreme Court itself; but it is really not matter difficult of explanation.
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