Law and the Future: Trade Regulation (1956) (reprint)

Originally published in the Northwestern University Law Review, Vol. 51, No. 281, 1956. Reprinted with special permission of Northwestern University School of Law, Northwestern University Law Review.

In this note we do not attempt to predict the future of the anti-trust laws. Rather we wish to direct attention to certain problem areas for study. We assume for the purposes of this discussion that an over-riding belief in both free enterprise and in competition will prevail over future possible NRA attempts. We assume also that despite the extension of a government regulation of one form or another, there will still be a place for regulation by competition. The ability of the antitrust laws in weathering NRA and government regulation attempts in the past provides a basis for assuming the laws will continue. The durability of the antitrust laws is perhaps their main characteristic. In large measure, this is a common law durability, built on a case by case development, and exhibiting that flexibility is now limited by particularizing legislation enacted to accompany the Sherman Act.

Throughout its history, indeed, the Sherman Act has exhibited the twin tendencies of flexibility and ambiguity, on the one hand, and a drive for certainty and automaticity, on the other. At the moment, the drive for certainty and automaticity seems paramount, but not without criticism and reaction. Much of this drive for certainty rests not so much on the concept of fair warning, which is inherent in any idea of the rule of law, but rather more on the belief that new and automatic applications of the laws will catch objectionable conduct and effects in their incipiency. The idea of incipiency seems to rest of economic doctrines, or, conclusions drawn from experience. Because of these doctrines or conclusions, certain types of conduct are deemed harmful in themselves, although the harm in the particular case may not be visible. Economic theory or experience thus substitutes for an observed effect.

Reprinted from the CPI Journal, Autumn 2007, Volume 3 Number 2