ABSTRACT
The celebration of the Sherman Act's' first 100 years will bring forth encomiums from some, and brickbats from others. Some will applaud the Act as a bulwark against the oppression of economic and political liberty through the centralization of private economic power. If the Act has fallen short of this lofty ambition, the fault is not with the Congress or the now familiar language it enacted, but with courts and enforcement agencies that either failed to understand or chose to ignore Congress' intent.2 Some may attack the Act as a futile gesture, a cynical and perhaps successful effort to prevent alternative, more effective
measures against the use of corporate power. 3 Still others will view the Act, as interpreted, as a factor contributing significantly to inefficiency in the marketplace, and the loss of sales and jobs to foreign competitors. In their eyes, courts and enforcement agencies have been overzealous, and have taken the Act down paths both inappropriate and costly.•
Such disagreements are hardly surprising. The Congress of 1890 stood at a relatively early point in the growth of American industrialism. It lacked the experience and economic sophistication with which we at least think we approach the same issues today. While it did not like the trusts, it was relatively inarticulate in explaining why. The Sherman Act is in its language remarkably imprecise, and efforts to divine its purposes from legislative history have been inconclusive.' The debate over antitrust's goals has focused more on what these goals should be than on what Congress has said that they are. 6 The values and beliefs at issue go
far beyond the boundaries of antitrust, encompassing broad issues of political and economic power that transcend the narrow issues with which antitrust must deal. Fear of economic concentration, faith in the ability of government to act responsibly and intelligently, and skepticism about the equation of private and public good, will lead some to seek a highly interventionist antitrust program that is/ in tum, anathema to those whose major fear is the government and whose faith in free markets is unshaken. • These values, however articulated, are born out of tradition, and the economic and political philosophies that we all hold. They are as much a matter of faith as demonstrable truth, however hard we may try to wrap antitrust in the trappings of science. Disagreements on these broad issues, which are central to the evaluation of the Sherman Act, the body of antitrust doctrine that it has spawned, and the performance of the institutions involved in its interpretation and enforcement, will not and cannot be resolved simply through the exercise of reason.
