Antitrust and Trade Regulation Commons^™

Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch

Cleveland State Law Review

When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a "supplement" to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.

Using historical and empirical research, this Article establishes that the best explanation for the early failure …