Talk:Sherman Antitrust Act/Archive 1

Archive 1

error?

I've just looked over the Enforcement section and I think there may be a problem:

• The Enforcement section distinguishes criminal and civil suits and then says that civil suits are different because they use the rule of reason. As I understand it, the rule of reason is generally applied when the conduct does not meet the per se standard. Accordingly there may be a rule of reason analysis under either a civil or criminal case.

Steptoe 05:04, 26 February 2006 (UTC)

Technically, that's not right. Since rule of reason conduct is a "grey area", DOJ uses prosecutorial discretion to only criminally prosecute "per se" conduct. You can, however, have civil "per se" cases.

Additionally: "The Act was intended to prevent arrangements designed to, or which tend to, increase the cost of goods to the consumer. It was not specifically intended to prevent the dominance of an industry by a specific company, despite misconceptions to the contrary."

There is a HUGE debate going on right now about the purpose of the Sherman Act. The above statement is only one point of view and is not a settled principle and should not be treated as such.

Deletion of reference to "Trust companies"

Dear fellow editors. I have deleted the reference and link to Trust companies in the first paragraph of the main article on the Sherman Antitrust Act. The Act was not aimed at "trust companies" as that term is used in the "trust company" article. The Act was aimed at combinations in restraint of trade, monopolies, etc., regardless of whether in the form of a trust or corporation or any other form. Of course, if a particular "trust company" were to violate the Act, then the Act would obviously apply to that trust company.

The Act used the word "antitrust" because the main genesis for the law was the activity of the Standard Oil trust. The Standard Oil trust was controlled by John D. Rockefeller and his associates. At the time the trust was set up in the 1800s, corporations were much more limited in what they could do. That's why Rockefeller used what was, at that time, the more "flexible" vehicle of a trust. The Sherman Antitrust Act, however, was not aimed specifically at "trusts" or "trust companies."

By the way, by the time the antitrust laws were finally brought to bear to break up the Standard Oil group, Standard Oil was no longer using the "trust" vehicle any more. At the time of the Supreme Court's decision (in 1911), the parent entity was the "Standard Oil Company of New Jersey" (later called Exxon, and now called ExxonMobil), which was and is a corporation, not a trust.

Oops, I forgot to sign my comments! The above comments were inserted by me on 2 March 2006. Yours, Famspear 19:05, 22 June 2006 (UTC)

I edited the "Criticism" section to make it clearer and a bit less biased

The second paragraph began with the sentence "However, even some of those who grant that refraining from antitrust regulation is beneficial for consumers, still favor the act for protectionist reasons," which implied that you were either against antitrust laws or pro-protectionism. The paragraph then went on to discuss competition and protectionism was not discussed again until the third paragraph.

I also tried to make it clearer where the authors were expressing opinions, not facts.

I still think there are two major flaws with this section -- 1) this is more a discussion of antitrust laws, not the Sherman Act itself. These arguments should be moved to the antitrust page where there's a rebuttal in the form of the "Rationale" section 2) two of the quotes are from 1890. No offense to the good folks at the Cato Institute, but I don't think tariffs are still the hot button issue today that they were back then. In fact, there's a strong argument that antitrust laws are anti-protectionist -- Reagan's rationale for decreased enforcement of antitrust laws was increased competition by Japanese firms.

Spambi 06:29, 26 June 2006 (UTC)

I think we should either move or delete the "Criticisms" section. Currently, this article only presents one side of a debate in violation of Wikipedia's neutrality standards. So we should either move it into the general "U.S. Antitrust" article, delete it altogether, or add a "justifications" section. WP:NPOV 149.101.1.116 (talk) 19:45, 10 July 2007 (UTC)

OPEC analogy

I think saying Standard Oil in the 19th century was the OPEC of the 1970s is a flawed analogy. OPEC is primarily based on oil production, unlike Rockefeller who started off with refining and transport. Additionally, less than half of world oil production is by OPEC member states, while Standard Oil was a true monopoly in their field. This is not to mention differences between a corporation and loose alliance of states. Ec- 01:04, 27 September 2006 (UTC)

It doesn't matter. OPEC is not based in the United States. —Preceding unsigned comment added by 76.222.217.67 (talk) 04:02, 6 March 2010 (UTC)

Greenspan critique

If you haven't read the critique, I highly recommend it. A fascinating lesson in economic history, given by a brilliant man. His critique is applicable today to the current calls from Washington against the perscription drug industry, and the petroleum industry which has managed to keep a gallon of gasoline roughly the same price as a gallon of dairy milk. --205.201.141.146 18:23, 9 May 2007 (UTC)

Name?

Any idea why its called Sherman?--64.121.37.179 00:29, 29 May 2007 (UTC)

As the article states, the statute "was named for its author, Senator John Sherman of Ohio." JamesMLane t c 23:21, 29 May 2007 (UTC)

Recent Vandalism

Article fixed. Comment blanked - DENY. Non Curat Lex (talk) Vandalism is back, this article should be locked —Preceding unsigned comment added by 32.138.71.223 (talk) 15:04, 2 March 2009 (UTC)

Actually, no, I just restored the wrong version. Sorry. My fault. Non Curat Lex (talk) 01:05, 3 March 2009 (UTC)

Confused about the Valentine AntiTrust Act

The history section says that the Sherman AntiTrust Act "followed Ohio's Valentine Anti-Trust Act (1898)." But, the Sherman Antitrust Act, according to the article was passed in 1890. I'm confused. Ervinjn (talk) 17:28, 2 October 2009 (UTC)

What does it mean when the article refers to fishing expeditions? --64.32.92.64 (talk) 02:50, 20 February 2011 (UTC)

"Single Dissenting Vote"

The Sherman Antitrust Act is widely known to have been passed by both houses of Congress with only "a single dissenting vote" in the Senate. Could someone please clarify who the one dissenting Senator was? It doesn't say anywhere here or in any related articles, and it's been bugging me for a while now. — Preceding unsigned comment added by 216.153.191.120 (talk) 13:56, 23 February 2012 (UTC)

Definition is wrong

The beginning of the article states the following: "...prohibits certain business activities that reduce competition in the marketplace." That's technically false. It prohibits certain business activities that regulators view as reducing competition in the marketplace, which is sometimes different. I was going to change the sentence right away, but wanted to get some input to avoid a revert. --Coching (talk) 02:46, 25 January 2013 (UTC)

Neutrality debate

This article was tagged for NPOV review. Is there still a debate? I don't see any posts either way. I think the "critics" section could use better coverage, but I don't think the article is biased. Non Curat Lex (talk) 05:00, 21 January 2008 (UTC).

Still waiting for some comment... Non Curat Lex (talk) 23:58, 5 February 2008 (UTC)

It seems that the content was never disputed, but rather the style was. I don't think the initial disagreement warranted the NPOV tag, and I suggest it be removed immediately. The NPOV tag makes many users doubt the legitimacy of an article, rightly or wrongly, and thus "throws the baby out with the bathwater," so to speak. An article should be blatantly slanted or partisan to carry a label that essentially deprives its entire content from being perceived as authentic. Therefore, since I am not a party to the dispute and there has been no recent objection, I will remove it myself.--Bodybagger (talk) 04:48, 15 February 2008 (UTC)

I put in the original NPOV tag mostly because at the time this article consisted solely of a small "History" section and a "Criticism" section that was three times its size. The current article no longer has that problem. Idag (talk) 08:27, 18 February 2008 (UTC)

Additional/New Thoughts

I am unsure of where to add this but this seemed like a good spot. I'm still new so please feel free to correct me or help me out if I'm making any errors.

I was reading the article and thought the text was leading or suggestive. I decided I'd enter the talk page and see if I could figure out how to voice my concerns with this. (I also made a minor change but that's not important.) Anyhow, right at the start of the article it calls it a "landmark federal statute" which seems more subjective than factual. Additionally I found this text to be disturbing, "It was another and quite a different evil at which the Sherman Act was aimed." While that may appear excellent in a high school essay this is, as I understand it, an attempt to be an encyclopedia and opining like that seems more likely to be a disservice than it does to be a valid inclusion. If nobody objects I'd like to delete the entire sentence. Not only does it read just fine without it, it reads better without it.

I would like to change the page from:

"It was another and quite a different evil at which the Sherman Act was aimed. It was enacted in the..."

To:

"The laws was enacted in the..."

The information imparted is the same, there is no loss there, with this edit. It also removes the attempt to influence the reader with the suggestive text that is currently in place. As I mentioned, if nobody objects then I'd like to make the change so I'll give it a day or so and will check back in to see if there are any comments concerning this. If there are no comments that suggest the edit shouldn't be made then I'll go ahead and make the edit.

"So long and thanks for all the fish." (talk) 04:35, 10 June 2013 (UTC)

And done.

"So long and thanks for all the fish." (talk) 17:22, 11 June 2013 (UTC)

Legislative Intent Section

Contains too many quotes and not enough original material. It should be rewritten in a more clear and succinct manner. — Preceding unsigned comment added by 220.232.249.185 (talk) 06:25, 10 September 2013 (UTC)

Untitled

The article says that only firms which are in a monopoly position are caught by Sec. 2 of the Sherman Act. This is not true. The Act is also directed against unlawful "attempts to monopolize"; in those situations a monopoly does not and may never really exist. Cf. http://www.ftc.gov/bc/antitrust/single_firm_conduct.shtm —Preceding unsigned comment added by 89.206.71.223 (talk) 05:34, 6 May 2011 (UTC)

Recent additions by user Non Curat Lex

Non Curat Lex has recently engaged in a unilateral expansion of certain sections of this article. While his work is appreciated, his insights interesting, and his approach not entirely faulty, there have nevertheless been some issues of scope and judgment that highlight the need for editing by many parties rather than one.

Non Curat Lex has, for example, expanded the "Legal Effects of the Act" section to the point where it comprises the preponderance of the article. Stylistically, it resembles an academic argument and is thus purposely persuasive rather than neutral. Particularly problematic is the "Was the Court once biased against big business? Is it biased towards big business today?" section, in which the "once" appears to refer to the Warren and Burger courts and the "today" appears to refer to the Rehnquist and Roberts courts. The section thus marginalizes the extremely different history of the judicial application of the Sherman act prior to the FDR-era event known as the switch in time that saved nine.

Non Curat Lex has also made significant errors in judgment and logic, having removed, for example, a direct quotation from Judge Learned Hand, saying that the linked essay "plagiarized" Judge Hand (in fact, the linked essay was being used simply as the source for the direct quotation, and referred to it as such). The only reason that I have resisted hitting the "undo" button on Non Curat Lex's removal of the quote is that it would further expand the article's discussion of one sub-issue at the expense of all other issues. Once the Sherman act article has been fully fleshed out and stabilized, this quote from Judge hand (along with a counter-argument) would seem perfectly appropriate.

I hope that others will help to refine Non Curat Lex's many valuable contributions and to expand the article into something better-rounded and more useful. (In the short term, the "neutrality" flag, or a similar flag, must stay in place to alert readers to the problems of scope and content.) —Preceding unsigned comment added by 98.203.143.163 (talk) 23:01, 6 February 2008 (UTC)

A response

Thank you for your review of my contributions to the article and for bringing your concerns to my attention and to the attention of the wikipedia community. That community will benefit from exposure to different viewpoints, and I agree that by no means should my contributions today be "the last word," but rather, just a "starting point" for further revisions. I have no desire to argue against your above stated positions, but I would like to offer a little clarification for you and for any other concerned readers.

Plagiarizing Judge Hand:

I would like to thank you for not reverting my edit, because now I have a chance to explain my position.

First, the plagiarism is not in the wikiedit itself, but in the underlying source. A quotation can contain a quotation; a citation often contains an internal citation. When one source depends on aother, all of the levels must be academically honest, or none of them are. In this case, the wiki-editor did not plagiarize anything; I make no claim that he did; he cited his source. But you must also look within the source, because that source contains the quotation, and that must be based on something too.

The plagiarism in that source consists of the author attributing a position to another that he did not take. Please remember that plagiarism can consist not just of omission but also of comission. That is, plagiarism-by-omission consists of taking credit for the ideas of another, by using their words or ideas without acknowledging the source. Plagiarism-by-comission is writing ones own words or ideas, and claiming that they belong to another.

Specifically, the article contains what is allegedly a quotation from what the author called Judge Hand's "indictment" of ALCOA. He does not use a properly accepted academic or legal citation form. That alone is not plagiarism, since there are other ways of effectively giving credit. However, it should be a red flag.

Judge Hand is not a prosecutor nor a grand jury and does not prepare "indicments" in the technical sense. However, he is the author of a judicial opinion on behalf of a three-judge appellate panel which affirmed a trial court judgment against Alcoa. See United States v. Aluminim Co. of America, 148 F.2d 416 (2d Cir. 1945). His criticisms of the defendant therein could be known less formally as "indictment."

Now here's the kicker. Nowhere in Judge Hand's opinion are the sentences attributed to him to be found. Read it for yourself. Based on the absence of the purportedly quoted sentences from Judge Hand's actual I conclude that the author of the article at polynomics.com has put words in Hand's mouth.

Further, the purported quotation, in addition to not being an actual quotation, are not a fair paraphrase either. The quote attributes to Hand the position that Alcoa WAS an innocent monopoly. This was not Hand's position. Hand acknowledged the idea of an "innocent monopoly." However, he then, very clearly stated why Alcoa was in no way innocent, but coercive.

Unless, and until, someone can bring forth the text from which it comes, I believe that quotation to be highly suspect. Perhaps you know differently. But I ask you this: based on the facts as they presently appear, would you feel any differently from me?

My Style & "Argument"

My style is academic and technical. This I cannot help. I am a law school graduate and practicing lawyer. My contributions to competition law articles on wikipedia are based on my relevant coursework, and my legal abilities. However, I have faith that through the open source model, people will be able to take what I have written, and reword it as need be.

Though academic and technical, my content is not "argument" as it is commonly meant here: POV-pushing. Prior to my creating the "legal effect of the act section," all this article had was a little bit of abstruse statutory quotation, and some POV-pushing about the act having hurt unions. The article gave no explanation of the real meaning of the Sherman act - understandable because that meaning is, extrinsic to the plain language of the act. I am trying to unite the practical meaning, the original meaning, and the most interesting historical facts in this article.

Here is how what I have written is an argument: I explain the act. I am giving interpretations. Inference of any kind, literally, is argument, and explanation of any kind, is inferrential, according to a number of prevailing theories of epistemology. Here is how what I have written is not an argument: I do not push any POV on any contested issue of interpretation. I am giving a condensed explanation of the most salient points of the history of the act, and its application.

Now as for the first kind of argument, it is implicitly acknowledged that this kind of "argument" is inevitable in an encyclopedia, and it is not forbidden; the problems it poses are avoided by the rule of verifiability and the preference for citation. As for the second kind of "argument" - POV-pushing, there are rules against that too.

Now, the first kind of argument is especially inevitable in articles of a legal nature. That's because these articles are best when the content is supplied by people with legal training. However, many of the sources used by people with legal training do not provide answers, but use the "socratic method." This requires a certain amount of original interpretation, or reliance on copyrighted materials. Ruling out the latter, the former is bound to happen.

So I think we should focus on the issue: have I avoided the problems with that kind of argument by writing verifiable content, and writing to sources? I concede that I have not cited everything I have written -- yet. However, I submit that everything I have written is verifiable.

As for the second kind of argument, the kind that is of greater concern, POV-pushing, well, I do not think that I have.

Also, by no means did I intend to marginalize the Vinson, Stone, Hughes or Taft courts, all of which made significant contributions to early antitrust law. As I was drafting the article, I simply lacked the resources to go into detail about all of them. I made a decision to focus on the most likely lightning rod topic. Further, the section which I kept from a much earlier version of this page concerning Sherman act usage in Union busting, focuses entirely on pre-Warren court issues. I think that as the article is expanded, they will get their due. However, to give full coverage to all will make for a long article. I think the best way to give them their due is by expanding the related article on the rule of reason.

I will call myself for POV-pushing and originality on one issue, perhaps. I am clearly biased against the way early 20th century cases handled the issue of market definition. However, this POV is the consensus position among scholars and professionals in the field, perhaps undisputedly. My use of Grinnel as an example is difficult to source;

Nevertheless, my main goal is accuracy. It is very difficult to accurately explain the Sherman act. Frankly, few people can, and of those who can, most are unwilling. I am interested in revisions or competitiong interpretations. I'm sure we can do plenty of the former, but I don't know where you're going to find the latter.

Personal Note I notice that your comments are not made by a registered wikipedia editor. Perhaps you are new to wikipedia (as I am) or perhaps you are a veteran editor who forgot to log in (as I often do). Either way, I hope that you will continue to be a part of this discussion. Thank you again for your comments. I hope you will take a moment to review my response, and perhaps write back. Feel free to use my talk page as well.

As one of the very few people who looks at this article, I'd like to thank you guys for your contributions. I think we can make this article better by focusing not on whether courts were hostile to big business, but on the fact that economic theory has changed over time. Most notably, the earlier decisions were made before the Chicago School economics gained any traction. Ideally, I'd also like to break this article up into sections that deal with the Sherman Act's black letter application to various types of potentially anticompetitive conduct (i.e. tying, price fixing, exclusive dealing, etc.) What do you guys think? Idag (talk) 08:21, 18 February 2008 (UTC)

Idag - I think you are onto something - those subjects should be mentioned; I like taking a functional look at law. For me, that includes dealing with the misconception that Chicago school economics are biased towards a special interest; they can be used that way, or they can not; it depends. It should also include specific instances. However, I think that broader discussion of those topics has already been handled in their own articles, in the main competition law article, and in the Clayton act article (to which I added a functional contrast with the Sherman act). So I would favor being more specific - there should be sub-sections on price fixing, territorial divisions and other forms of cartelization; and then there could be a fourth category for "other" arrangements (tying, exclusive dealing, and other vertical restraints) to which the the Act could be applied, but really wasn't until the Clayton act made a more robust regime. Non Curat Lex (talk) 18:45, 7 March 2008 (UTC)

Does price fixing laws apply to MMO video games?

In MMOs (Massisvly multipler online) games there are markets where traders compete to sell their wares to other players. Would an anti-trust price fixing law apply to such a virtual world? — Preceding unsigned comment added by 96.41.13.142 (talk) 22:20, 12 December 2018 (UTC)