Antitrust and Trade Regulation Commons^™

Book Reviews, Edward S. Mason, Stanley D. Rose, Reber Boult, Robert N. Covington

Vanderbilt Law Review

This volume, which brings together, with one exception, all of Stocking's papers relating to workable competition, is more than a random collection of essays. As he indicates in the preface, the papers had been conceived from the beginning as segments of a book, and they proceed to cover systematically the relation of the concept of workable competition to the major areas of antitrust policy.

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Sir Frederick Pollock was born in 1845 and died in 1937. Throughout this long life, his industry was apparently unflagging. His mark is clearly discernible in wide areas of English law. Every student of the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Due Process--Expulsion From Public University Requires Notice and Hearing

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Antitrust Law--Investigatory Powers--Federal Trade Commission Has Right To Obtain Private Copies Of Privileged Census Information

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Constitutional Law--Due Process-Escheat By One State of a Fund Claimed By Other States Held To Violate Due Process

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Sales--Warranty--Advertisement That Cigarettes Are Harmless Held An Express Warranty

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Taxation--Income Tax-Deferral Of Prepaid Income Disallowed

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Taxation--Inheritance, Estate and Gift Taxes--Blockage Rule Rejected in Evaluating Stock For Ohio Succession Tax

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Taxation--Use Tax--Commerce and Equal Protection Clauses--Discrimination Against Multi-State Business

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Torts--Negligence--Vendor of Alcoholic Beverages Held Liable for Injuries to Intoxicated Vendee Despite …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Restraint of Trade-Supreme Court Suggests A New Reading of Section 3 of the Clayton Act

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Civil Rights--Abatement and Revival--State Survival and Wrongful Death Statutes Adopted in Federal Civil Rights Act Suits

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Constitutional Law--Tenth Amendment-the Estate of A Veteran Dying Intestate Without Heirs May Constitutionally Escheat to the Federal Rather Than State Government

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Due Process of Law--A State May Deny An Applicant Admission to the Bar for Refusing To Answer Questions About His Advocacy of Subversive Organizations Or Objectives

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Federal Courts--State Security for Expenses Statute Inapplicable in Federal Equity Action Under Securities Exchange Act

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Federal …

Business Associations -- 1961 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

I. CASES

A. Disregard of Corporate Entity

B. Action in Corporate Name After Revocation of Charter

C. Effect of Merger

1. Privilege Tax

2. Statute of Limitations

D. Judicial Intervention in Internal Corporate Affairs

E. Disregard of Fictitious Corporate Records

F. Criminal Liability of Corporation for Acts of Agents

G. Corporate Venue Under Federal Anti-Trust Laws

II. STATUTES

A. Unincorporated Associations Treated as Corporations

B. Amendments to Securities Law

C. Massachusetts Trust Act

D. Industrial Development Corporation "Projects"

E. Amendments Relating to General Welfare Corporations

F. Miscellany

Monopoly Profits, Economic Impossibility, And Unfairness As Anti-Trust Tests, Philip Marcus

Vanderbilt Law Review

One must agree with the district court's observation that the mere fact that one opens a business in an area with the idea that he will succeed and an existing-perhaps poorly run-business will have to withdraw and leave him alone in the field is hardly a situation which the Sherman Act is intended to reach. The Sherman Act does not protect one from competition, least of all a monopolist, which the Gazette admittedly was. And this is true even though the competition is likely to result in a monopoly. But there are limits upon the methods which one can use …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Act--Discriminatory Practices--Defenses Available to Charge of Discrimination in Furnishing Services and Facilities

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Bankruptcy--Priority of Wages--Employer's Contributions to Welfare Funds Are Not Entitled to Priority as Wages Due to Work

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Constitutional Law--Social Security Benefits--Automatic Suspension of Deported Person's Social Security Benefits a Denial of Due Process

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Constitutional Law--Union Shop Agreement Under Railway Labor Act Violates Constitutional Rights of Employees

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Corporations--Securities and Exchange Act of 1934--Liability of Director for Profits on Stock Acquired Prior to Election as Corporate Official

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Damages--Quasi Contract--Exemplary Damages in Quasi Contract When Defendant is Guilty of Fraud

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Evidence--Other Crimes--Admissibility of Evidence …

The Impact Of Antitrust, John P. Miller

Vanderbilt Law Review

The functions of the antitrust laws have never been well articulated. Some proponents of the law emphasize the economic benefits of competition, i.e., incentives to economic efficiency and growth. Others emphasize the political and social advantages of minimizing the concentration of economic power. A review of the history and present status of antitrust suggests that both these views play a part. The Sherman Act prohibitions of "restraint of trade" and "monopolizing" suggest concern that entry into an industry shall not be barred by arbitrary restraints and that decisions of various firms shall be arrived at independently. This is not the …

Antitrust Provisions Of The Atomic Energy Act, Richard Cosway

Vanderbilt Law Review

"It is ... declared to be the policy of the United States that... the development, use, and control of atomic energy shall be directed so as to promote world peace, improve the general welfare, increase the standard of living, and strengthen free competition in private enterprise." These are almost the first words of the Atomic Energy Act of 1954 which, in stating the policy of the United States, establish the goals to be sought. As stated, the strengthening of free competition is a goal; it is not the device by which the other goals are to be achieved. Apparently of …

Worldmarks And The Antitrust Law, Rudolf Callmann

Vanderbilt Law Review

Like all things, trademark rights can also be exploited for sinister purposes. A trademark can, for example, be used in violation of the antitrust laws and no elaborate references need be made to the legislative history of the Lanham Act to demonstrate that the Act was "not intended to undermine the anti-trust laws."' Certain specific provisions of the Act clearly disclose the legislative intent to dissuade a trademark owner from using his mark in violation of the antitrust laws.

Du Pont General Motors Case, James A. Hart

Vanderbilt Law Review

On June 3, 1957, the United States Supreme Court, in a four to two decision, held that the du Pont Company's ownership of twenty-three per cent of the voting stock of General Motors had tended to create a monopoly in a line of commerce and thus violated section 71 of the Clayton Act. Justice Brennan wrote the majority opinion and Justice Burton, joined by Justice Frankfurter filed a vigorous dissent. Three of the Justices, Clark, Harlan and Whittaker took no part in the consideration or decision of the case. Hence, a possibility remains that the present Court, with all nine …

The Legality Of Trade Association Statistical Reporting Under The Antitrust Laws, Harry Kemker

Vanderbilt Law Review

Of the myriad economic functions performed by trade associations,the practice of gathering, compiling, and disseminating trade statistics is doubtless one of the most important.' Although the numerous statistical reporting programs vary markedly in size and scope, it seems safe to say that at least two-thirds of all trade associations indulge in some form of statistical activity. The beginning of this trade association statistical reporting is usually attributed to the theories contained in a book called The New Competition, written by A. J. Eddy and published in 1912. The concept championed by this work was "open competition," and an important part …

The Impact On Business Of Antitrust Decrees, Philip Marcus

Vanderbilt Law Review

Government regulation of business may not be widespread but it is not unknown in this country. The source of such regulation normally,however, is a federal or state statute. Sometimes, as in the case of the Fair Trade Laws, businessmen have even promoted such regulation. Less well known, but often far-reaching, is the regulation of business conduct through antitrust judgments. Needless to say, generally such judgments are not welcomed by those to whom they apply.

About five hundred civil antitrust judgments have been entered in cases brought by the United States under the antitrust laws.' Cease and desist orders of the …

A Note On Concentration Studies And Antitrust Policy, Jesse W. Markham

Vanderbilt Law Review

The current interest in industrial concentration studies almost rivals that which gave rise to the Temporary National Economic Committee's voluminous output on the subject two decades ago. Indeed,by almost any standard, 1957 was a banner year. The Federal Trade Commission opened the season with its 656-page report in January. The National Industrial Conference Board devoted a session to the topic at its forty-first annual meeting in May. In July the Bureau of the Census published its study performed at the request of the Senate Subcommittee on Antitrust and Monopoly. In June the Chamber of Commerce of the United States issued …

Refusal To Sell, Vernon A. Mund

Vanderbilt Law Review

Today, the business practice of refusal to sell is one of the principal antitrust complaints. However, paradoxically, it is a complaint which receives practically the least amount of attention and relief. Typically, the antitrust agencies treat reports on refusal to sell with the generalized reply that "the seller has the right to choose his own customers." The very number of complaints, however, as well as an economic analysis of the practice itself, points to the need for a reevaluation of this business practice and for a reappraisal of the currently applicable judicial decisions.

As we shall see in the present …

For H.R. Ii And S. Ii To Strengthen The Robinson-Patman Act And Amend The Antitrust Law Prohibiting Price Discrimination, Wright Patman M.C.

Vanderbilt Law Review

H. R. 11 and S. 11 are modest and simple legislative proposals.'They provide for no change in our antitrust laws prohibiting price discrimination except to limit somewhat the use of the "good faith" defense. The extent of this limitation goes no further than to assist the Act by providing that the "good faith" defense shall not operate as an absolute and complete bar to a proceeding by the Government against the practices of destructive price discrimination: In other words, those discriminations which would have the effect of substantially lessening competition and tending to create a monopoly may not be defended …

The Doctrine Of Misappropriation In Unfair Competition, W. Edward Sell

Vanderbilt Law Review

The last fifty years have witnessed a tremendous surge in American businesses, both in number and in size. With this development, new methods of doing business have been devised. Although these methods are generally designed to increase competition in our economy, not all of them are considered ethical or fair. Some of these unfair or unethical practices are now controlled, within limitations, by the Federal Trade Commission. The remaining acts or practices must be controlled by other means within the framework of the law. The legal touchstone in such instances is "unfair competition." One of the greatest problems in this …

A New Approach To Resale Price Maintenance, James A. Maclachlan

Vanderbilt Law Review

Resale price maintenance has had a lively legal history. After court decisions under the Sherman Act and the Federal Trade Commission Act had discouraged it in the first third of the current century,' it was encouraged by Fair Trade Acts in so many states as to develop an impractical cleavage between state and federal law. Congress responded by passing the Miller-Tidings Act in 1937. This made the relevant antitrust laws inapplicable to resale price maintenance contracts valid by the law of the state where resale is to be made. The amendment conformed in essential respects to the structure of the …

Exclusive Arrangements And Refusal To Deal Problems, Reynolds C. Seitz

Vanderbilt Law Review

Justification for including a discussion on exclusive dealing arrangements and on refusal to deal decisions in a symposium devoted to trade practices rests upon the practical consideration that there exists on the part of business management a considerable interest in the two commercial tools.

Business executives find appeal in the prospect of using a contract calling for exclusive dealing.' Those engaged in commerce have for a variety of purposes frequently employed as a lever the refusal to deal.

Possible antitrust implications in the use of the two devices has not always been understood by business. In recent years, however, the …

Statutory Restrictions On Selling Below Cost, Homer Clark

Vanderbilt Law Review

The rules of the American game of competition are numerous, diverse and often inexplicable, but none of them is as dubious in purpose or as devious in operation as those found in the statutes prohibiting sales below cost. Such statutes have been enacted in the overwhelming majority of states,' the earliest ones dating back to the Great Depression. Indeed their philosophy has infected the federal antitrust laws. That the impetus back of these statutes was not just a product of depression fears and frustrations is shown by their passage after the depression was over in some states, and during the …

Senate Bill No. Ii And Antitrust Policy, Kenneth S. Carlston

Vanderbilt Law Review

The history of the judicial interpretation of the Sherman Act' is a history of the legislative process working through the mechanisms of the judicial process. Starting with an act phrased in the most general of terms, nearly seventy years of judicial administration have developed a system of interdependent postulates analogous to legislative norms. None of these postulates can be considered as prevailing over all others. But the binding thread of the Sherman Act is the proposition that the market shall be dynamic, manifesting sufficient energy through price competition by the organizations participating in the market to ensure that the advances …

Legal, Economic And Political Considerations Involved In Mergers, Joseph W. Burns

Vanderbilt Law Review

Although the merger statute--section 7 of 'the Clayton Act'--was enacted in 1914, it was forty years before it assumed any importance in the antitrust field. The original statute, applicable to acquisitions of stock but not to acquisitions of assets, was wholly ineffective to prevent mergers. Enforcement efforts were insignificant...

If Congress expected the 1950 amendment to solve all the merger problems which were discussed prior to its enactment, this expectation has not been realized. Congressional committees in both the House and Senate have instituted investigations and held public hearings which have indicated considerable dissatisfaction with the effectiveness of section 7 …

Antitrust Laws And The Territorial Principle, G. H. Haight

Vanderbilt Law Review

During the past few years there has been extensive discussion regarding the extraterritorial application of antitrust laws and some attempts have been made to consider the matter in the context of public international law principles.' Notwithstanding objections raised by foreign governments to court orders and subpoenas directed to foreign corporations in relation to their activities abroad, some commentators still appear to consider that there are few, if any, limitations imposed by law upon such assertions of penal power. This position requires reexamination, and in undertaking a review it will be relevant to consider the nature and effect of new antitrust …

The Lawyer's Role Before Litigation, Lee Loevinger

Vanderbilt Law Review

A lawyer is consulted regarding antitrust aspects of proposed business activities; or regarding the possibility that his client may have a cause of action under some antitrust law. What is his role at this stage? What are his responsibilities? Would these be substantially different if the client's problems had no antitrust element?

The system of formulating legal principles and studying and teaching law on the basis of the decisions of litigated cases has one serious shortcoming, at least, in its tendency to obscure the dual role of the lawyer: first as counsel, and second as advocate. Both lawyers and laymen …

Federal Control In The Food And Drug Industries, Thomas W. Christopher

Vanderbilt Law Review

If the attention or lack of attention law reviews give to a subject is indicative of the amount of governmental control therein, then one would conclude that there is little federal regulation in the food and drug fields. The fact is, however, that there are more than 1,200 pages of federal statutes and administrative regulations affecting the food and drug industries, and no industry is more tightly controlled. The antitrust, securities, and labor statutes, for example, are, if anything, less stringent.

In the main, the approach of food and drug regulation is from a different point of view than that …

Book Reviews, Irving Dilliard, Stanley D. Rose, Walter P. Armstrong Jr., Reginald Parker

Vanderbilt Law Review

The States and Subversion Walter Gellhorn, Ed. Ithaca: Cornell University Press, 1952. Pp. vii, 454. $5.00

reviewer: Irving Dilliard

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Freedom through Law

By Robert L. Hale New York: Columbia University Press, 1952. Pp. xvi, 591. $7.50

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The Group Basis of Politics--A Study in Basing-Point Legislation By Earl Latham New York: Cornell University Press, 1952. Pp. ix,244. $3.75

reviewer: Stanley D. Rose

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Richards on Insurance, Fifth Edition By Warren Freedman New York: Baker, Voorhis & Co., Inc. 1952. Pp. xxvii, 2692. $50.00

reviewer: Walter P. Armstrong, Jr.

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The Theodosian Code and Novels and the Sirmondian Constitutions: A …

The Right Of A Businessman To Lower The Price Of His Goods, Stanley D. Rose

Vanderbilt Law Review

The present actions being taken to mark the transition from cold to hot war are settling a number of problems and creating a host of others. The direction of our national effort within the economy will shift to production; our normal interest would be in distribution. This shift will not mean that the antitrust laws will be entirely suspended. There remain certain vital functions of protecting whole classes of citizens during the coming years of stress and for that day when once again we return to our new two-cars-for-every-family ideal.

'But it cannot be denied that a discussion of lowering …

Resale Price Maintenance, Stanley D. Rose

Vanderbilt Law Review

There was a tide in the affairs of men that was taken at its flood by the National Association of Retail Druggists--and it led on to fortune. For this band of little men the Miller-Tydings Amendment to the Sherman Act I was the end of a thirty years war. Enjoined in 1907 from attempting to force up retail price margins and maintain retail drug prices at a uniform level, this association joined with other groups desirous of achieving similar ends in an effort, year after year, to persuade Congress to permit the making of contracts between manufacturers and retailers that …

The Cement Decision And Basing-Point Pricing Systems, Clyde L. Ball

Vanderbilt Law Review

The period since the end of World War II has been marked by a tremendous volume of litigation arising under the federal anti-trust statutes. One of the Government's principal attacks has been aimed at the basing-point system of pricing which has been employed in many basic industries. This attack marked no new departure on the part of the Government; the Federal Trade Commission has consistently opposed the system, and the courts have repeatedly been called upon to review Commission orders aimed at some feature of the basing-point system.

Until recently the system had successfully withstood these attacks. It had weathered …

The Cement Decision And Basing-Point Pricing Systems, Clyde L. Ball

Vanderbilt Law Review

The period since the end of World War II has been marked by a tremendous volume of litigation arising under the federal anti-trust statutes. One of the Government's principal attacks has been aimed at the basing-point system of pricing which has been employed in many basic industries. This attack marked no new departure on the part of the Government; the Federal Trade Commission has consistently opposed the system, and the courts have repeatedly been called upon to review Commission orders aimed at some feature of the basing-point system.

Until recently the system had successfully withstood these attacks. It had weathered …

Book Reviews, H. C. Nixon, L. Dale Coffman, George W. Stocking, Victor C. Heck, Constantine G. Belissary

Vanderbilt Law Review

TO SECURE THESE RIGHTS

The Report of the President's Committee on Civil Rights with An Introduction

by Charles S. Wilson, Committee Chairman.

New York: Simon and Schuster, 1947. Pp. xii, 178. $1.00..

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ROSCOE POUND

By Paul Sayre

Iowa City: College of Law Committee

State University of Iowa, 1948. Pp. 412. $4.50.

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A NATIONAL POLICY FOR THE OIL INDUSTRY

By Eugene V. Rostow

New Haven: Yale University Press, 1948. Pp. XVI, 173. $2.50.

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THE TRADE OF NATIONS

By Michael A. Heilperin

New York: Alfred A. Knopf, 1947. Pp. xix, 234. $3.00.

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AMERICA'S ECONOMIC SUPREMACY

By Brooks Adams …