"The American Antimonopoly Tradition: Origins, Contradictions, Transfor" by Daniel A. Crane
 

Document Type

Article

Publication Date

2024

Abstract

Proponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades leading up to the Sherman Act. Initially, antimonopoly was primarily focused on the grant of exclusive privileges by legislatures and hence served as a limitation on state power. Later; antimonopoly became simultaneously statist and anti-statist, both a source of state regulatory power and an anti-regulatory doctrine. In parallel, the primary meaning of monopoly shifted from state intervention in the market to privately acquired economic power. Courts pivoted from defining monopoly as necessarily involving a state grant to necessarily not involving a state grant. The Sherman Act enacted this more recent sense of antimonopoly as federal law, but it did not terminate the contestation between the different senses of antimonopoly that continued into the twentieth century and beyond. There is not a unified American antimonopoly tradition, but rather a set of competing impulses or traditions loosely organized under the antimonopoly banner.

Comments

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