In the fall of 1911, The New York Times published a series of comments by “Eminent Men of Affairs” discussing “The Problem of the Trusts.” The series launched in the wake of the Supreme Court’s Standard Oil decision in May of that year, in which the Court broke Standard Oil into 34 independent companies but also appended “unreasonable” to the Sherman Act’s previously categorical prohibition on combinations in restraint of trade. The Times motivated the series by declaring that “[t]here is no question of more pressing importance in the United States today than that of the relations which shall subsist between the Government and the people on the one hand and combinations of the capital on the other.” Only three years prior to the passage of the Clayton Act, three discussion points were posed to these men of affairs in The Times series:
Much undoubtedly has changed in the past 108 years. The United States has more than doubled its body of antitrust law, gained a far broader base of enforcement and judicial precedent, become increasingly federal (and global) in its approach to antitrust, and added a regulatory agency. We also, finally, factor in the views of serious women of affairs. But many features and modifications of the public discourse about antitrust remain the same.
When FTC Chairman Joseph Simons announced the Commission would host Hearings on Competition and Consumer Protection in the 21st Century, he said that the purpose of the multi-month series would be “to consider whether broad-based changes in the economy, evolving business practices, new technologies, and international developments warrant adjustments to competition and consumer protection law, enforcement priorities, and policy.” These same motivations are common threads through the 1911 commentary in The Times:
When the Sherman anti-trust act was passed the trust development was comparatively limited. Since then, consolidation and combination have gone on until now . . . nearly every great staple of industry is controlled as to prices and terms of sale. The only reason for combination is to prevent competition, and the only reason for preventing competition is to secure larger profits.
Modern business cannot be conducted upon the old notions. Development industry does not admit of it. Development in transportation does not admit of it. The development and transmission of information does not admit of it. . . . While realizing the necessity for a freer hand in industry and commerce, untrammeled by government cramping . . . I am quite convinced that it is far more important for industry, commerce, labor, and the representatives of free institutions that the activities of wage earners, the wealth producers, in the opportunities for the protection and promotion of their rights and interest have predominating importance.
This is no longer an age of independent and competitive individualism; it is an age of co-operative individualism; and by the latter I mean the concentration of individualistic efforts. What has brought about this changed condition? It is the great agents of modern life—steam and electricity. They have created intercommunication—enabled minds to exchange instantaneous thought. They have displaced the ox team, with its small radius of operation, with the fast railroad and the steamship, which gird the word: the slow mail by the lighting-like wireless or telephone. They have annihilated distance.
If competition law is going to play the referee in the ways firms compete, then we should expect some evolution over time, as the ways that companies sell and consumers buy evolve. This is as true today as it was during antitrust law’s earliest days. As we have seen over the past century, great leaps forward in technology precipitate periods of reckoning. The Sherman and Clayton
Acts were drafted, implemented, and initially interpreted in the wake of the Second Industrial Revolution. The Chicago School and antitrust’s Microsoft era bookend the Third.
Nearly two decades ago, the Antitrust Law Journal published a precursor symposium to this one, on “Antitrust at the Millennium.” In that symposium, Robert Pitofsky wrote, “Of late, we hear increasing concern that the centuryold Sherman Act cannot keep up with the more dynamic and fast moving developments of the 21st century,” in the introduction to an article advocating for the application of antitrust’s core principles to technology and intellectual property. In the same symposium, Richard Posner contended, “There is indeed a problem with the application of antitrust law to the new economy, but that it is not a doctrinal problem; antitrust doctrine is supple enough, and its commitment to economic rationality strong enough, to take in stride the competitive issues presented by the new economy. The real problem lies on the institutional side: the enforcement agencies and the courts do not have adequate technical resources, and do not move fast enough, to cope effectively with a very complex business sector that changes very rapidly.”
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The author Kelly Fayne wishes to disclose that she has represented several companies in the technology industry that may have interests in the topics and matters discussed in this Editors’ Note and Symposium. The authors thank their co-editor, Elizabeth Bailey, academic affiliate at NERA Economic Consulting and instructor at the University of Pennsylvania, for her invaluable contributions to this symposium. They also thank the authors of the articles in the Symposium, as well as Tess Curet and Cameron Clark for their assistance with this note and Symposium
