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Sherman Act, Antitrust, 1890 Congress, Statutory approach, Common law, Restraints, Monopoly, Doctrinal incoherence


This Article proceeds as follows. Part I examines the legislative history of the Sherman Act to discover the policy choices actually made by the 1890 Congress. Part II sketches the development, operation and social costs of the conventional "constitutional" approach which now dominates section 1 adjudication. This Part demonstrates how the Supreme Court's failure to establish a workable methodology for resolving hard cases in the first Sherman Act decisions enabled it later to create the myth that the 1890 Congress made no hard policy choices. It then shows that the lack of a recognized statutory standard inevitably leads to doctrinal chaos and unacceptable social costs. Part III sets out the proposed methodology summarized above for resolving all section 1 cases. Part IV compares the two approaches as applied to the actual practices most frequently challenged under section 1. This Part demonstrates that because it treats like cases alike, at reasonable cost and in accordance with a fair reading of the original congressional intent, the proposal would substantially reduce the severe costs of the "constitutional' approach.

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California Law Review