3 ms·
I'm gonna disagree - the original act from 1890, still used, had interpretation issues from the start, which all of the "subversion" you speak of comes from. I
by DannyBee 3y ago
I'm gonna disagree - the original act from 1890, still used, had interpretation issues from the start, which all of the "subversion" you speak of comes from.
It is a difference in how the text is read for sure, but the text is badly written.
It says ""Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. . . ."
The immediate problem with this is easy.
he act does not define restraint of trade, either, so courts were left to define it.
This led, nearly instantly, to limiting the act to those contracts that "unduly" restrict trade using the rule of reason.
"To treat as condemned by the act all agreements under which, as a result, the cost of conducting an interstate commercial business may be increased would enlarge the application of the act far beyond the fair meaning of the language used. There must be some direct and immediate effect upon interstate commerce in order to come within the act."
Standard Oil, quoting Addyston Pipe & Steel Co. v. United States (1899).
Standard Oil also goes into the fact that restraint of trade is not defined anywhere in the act, etc, as further justification.
All that has happened since then is deciding what "unduly" means for this section
At this point, the sherman act is 133 years old. It would be good to update it and make the language less subject to interpretation.
- bryanlarsen 3y agoSure, but my point is that we don't "need" a new act, as the OP states. All hope is not lost if we don't get one. Bad precedence and an unclear act makes Lina Khan's actions very difficult, but not quite impossible. The split nature of Congress, its showmanship and quorum rules make getting a new act very difficult, but not quite impossible. We should be pursuing both paths in parallel.
- DannyBee 3y ago"Bad precedence and an unclear act makes Lina Khan's actions very difficult, but not quite impossible." No, but she's totally ineffective at knowing where to push or not - so it will be impossible, unfortunately.