chapter  5
24 Pages

Antitrust: The War Against Contract

ByThomas A. Bowden

Antitrust laws operate by one essential mechanism: the destruction of contracts. Beginning with the Sherman Act in 1890, a stream of antitrust measures endowed the federal government with broad anti-contractual powers unprecedented in American legal history. Today, criminal antitrust prosecution remains vigorous, even under Republican administrations, while the availability of civil suits subjects every business to attack by competitors. To remedy this situation through the abolition of antitrust will require the vindication of a legal principle that dominated American law in the nineteenth century but is unheard of today: sanctity of contract. For more than a century, American intellectuals and politicians have been engaged in a war against freedom of contract, a war that began in earnest with the imposition of federal antitrust statutes and spread rapidly to other economic and social battlefields. American law books of the twentieth century catalog the injuries inflicted on citizens' contractual rights by an increasingly oppressive legal system.