The Antitrust Attorney Blog
Author: Steven Cernak
Most antitrust practitioners, even members of the general public, have a good intuitive sense of what Sherman Act Section 1 is aimed at. Whether you follow the common law’s ancient voiding of “combinations in restraint of trade,” as does Greg Werden for example, or your kindergarten teacher’s instruction to avoid “ganging up,” as explained by Dick Steuer, even beginning antitrust students understand that certain agreements are bad for competition and, so, should be illegal.
But what about Sherman Act Section 2’s prohibition of monopolization? Is there anything in America’s history that might illuminate what legislators were thinking in 1890 or how courts should approach the issue today?
Those are the questions tackled by long-time practitioner and academic Barry Hawk in his 2022 book Monopoly in America. In just under 200 pages, Hawk covers over 400 years of American usage of “monopoly” to find, well, it’s complicated. Americans have hated monopolies for centuries, except for the ones that at least some of them liked, and their understanding of the term has varied over the years. Hawk succinctly explains the twists and turns and draws helpful lessons for today’s practitioners and policymakers.
Anti-Monopoly Tradition? Yes, but…
Hawk divides his survey into chapters covering four distinct American periods: colonial era; Revolution and founding; antebellum; and modern, that is, post-Civil War. In each chapter, Hawk walks through the laws, court opinions, and public statements of the period to illustrate America’s thinking about monopolies at that time. Like other authors, Hawk finds that America does have an anti-monopoly tradition; however, Hawk’s survey shows that that tradition does not take a consistent, linear path. Below, I summarize some of the inconsistencies highlighted by Hawk.
Yes, Americans were against monopolies but what they mean by the term “monopoly” has changed over the centuries. In colonial and early America, “engrossing” and “forestalling” were two of the major concerns captured by the “monopoly” term. Engrossing is roughly “cornering the market,” buying up all the goods so as to increase prices or otherwise control distribution. Forestalling is usually defined as buying goods from the producer or importer before the goods arrived at the designated public market. Concern about both issues waned after the Civil War, especially as American markets grew and demonized forestallers gradually became helpful facilitators or middlemen.
Similarly, pre-Civil War monopoly concerns included government grants of exclusivity to particular private actors. Famous examples include the British East India Company and the Second Bank of the United States. Again, concerns about these “monopolists” faded after the Civil War as worries about large private companies that we now know as “monopolists” grew.
Yes, Americans and their English predecessors were against “monopolies” but sometimes a monopoly was in the eye of the beholder. As Hawk describes, the English principle outlawed monopolies but made exceptions for local grants of exclusive privileges. Sometimes, laws and public opinion only condemned monopolies that served no public purpose, which was determined under a shifting reasonableness standard. In Colonial times, laws and constitutions sometimes made exceptions for local exclusive licenses, patents, and copyrights. Engrossing was a monopoly when it was “hoarding” but not when it was merely “storage,” and the dividing line was far from clear. Now, antitrust law allows state “monopolies” if expressly granted by the legislature and actively supervised. So, Americans definitely have been against monopolies except when they have been for them.
Yes, Americans are against monopolies, but the strength of that opposition has varied over time. Hawk focuses on the cycles since the 1890 Sherman Act: success in the early period with breakups in Northern Securities and Standard Oil; hibernation in the Roaring “20’s and Franklin D. Roosevelt’s first term; then more successes, like Alcoa and AT&T, into the “70’s; followed by more hibernation, with a Microsoft exception, until the 2020 election. So, while the anti-monopoly orientation never goes away, sometimes it remains dormant for quite some time.
Why the Cyclicality?
While Hawk’s fact reporting is interesting, the book probably is at its best when this long-time antitrust guru then offers up his explanation for why some of those facts occurred. At the end of the book, Hawk discusses some factors that he thinks best explain the cycles of monopoly challenges since 1890: political support; popular demand for action; changes in facts and economic conditions; changes in economic theory; legal process concerns; and the predominance of the consumer welfare standard. I will comment on three of them.
Interestingly, Hawk found that “popular support less clearly correlates with aggressive enforcement” than do some of the other elements. He sees no large anti-monopoly groundswell post World War II to accompany aggressive Section 2 enforcement. Today, despite the anti-monopoly push, “the general population appears happy to get ‘free’ platforms and relatively low-cost apps.” I would add the anecdote that at least one ranking of the most admired companies in 2022 was headed by Apple, Amazon, and Microsoft, three companies often accused of being monopolists. As Hawk puts it, popular support is helpful but not necessary to generate aggressive enforcement by the “politicians, academics, and antitrust industry generally.” As another long-time antitrust practitioner described it more than fifteen years ago, it is the true believers in the antitrust religion who often drive enforcement trends.
In emphasizing the importance of political support, especially in the administrations of both Roosevelts and Johnson for example, Hawk asserts, correctly I think, that various “schools” of the antitrust religion often have been given too much responsibility for historical developments. Whether John Bates Clark or Robert Bork, nobody wrote a magical law review article that suddenly changed anti-monopoly enforcement. Hawk does recognize that changes in economic theory can support changes in political thinking and, gradually, changes in the political support necessary to change the enforcement cycle. Still, for example, a story that focuses only on Bork and Easterbrook to the exclusion of Reagan and Bush II probably misleads.
Left unanswered in the book, probably appropriately for brevity, is how those changes in economic theory get translated into political support for a change in the anti-monopoly cycle. Whether Bork’s Antitrust Paradox, Salop’s and others articles on raising rivals costs, or Bert Foer’s founding of the American Antitrust Institute, Hawk leaves untold how views and actions that originally challenged the antitrust orthodoxy of the time eventually attracted numerous adherents.
Finally, Hawk points out that in 1890, a law enforcement model with courts as the ultimate decisionmakers was chosen instead of a regulatory one or some other model. As a result, legal process concerns have been and will remain important in challenges to monopolies. “[L]itigation costs, administrability of legal rules, capability . . . to fully understand complex facts and economic theories, and the magnitude of chilling effects on . . . efficiency-enhancing conduct when legal rules are overly broad” — any successful challenge to the current approach to monopoly will need to overcome, or avoid (rulemaking anyone?), decades of precedent that account for these factors. Despite current strong political support for such a change, expect it to come gradually if at all.
Conclusion
A few years ago, I reviewed Gregory Werden’s The Foundations of Antitrust. Because Werden’s book is more than one hundred pages longer and covers only from 1890 forward, it has both more depth and breadth than does Hawk’s. Hawk’s survey focuses only on monopoly since the 1600’s and finishes in under 200 pages. I recommend both books to antitrust practitioners.
These books both show that a study of Americans’ historical experience with “monopolization” will not provide a simple answer for today’s questions. As Werden points out, Section 2’s “monopolize” term was not found in contemporaneous law dictionaries. As described above, Hawk describes how “monopoly” has meant different things to different Americans at different times — and even at any one point in time, the dividing line between, for example, illegal hoarding or engrossing versus prudent planning or storage was not clear.
Even if it does not provide a simple answer, this study of anti-monopoly history is useful. It reminds us that our history is not just, literally or figuratively, throwing the tea in the harbor of some competitor who seems to have an unfair advantage. Nor is it just not turning on the successful competitor when, having been urged to compete, he wins. Studying the history gives us the opportunity to learn from the smart people who came before us and who had to struggle with a similar balancing in situations that seemed to them just as tricky as our current ones. That conclusion might not sell many bumper stickers or win many Twitter flame wars but following it might help continue for future generations the American benefits we currently enjoy.
Image by Anne and Saturnino Miranda from Pixabay