Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Friday, June 8, 2007

Supreme Court and Antitrust: A Historical Analysis

Posted by D. Daniel Sokol

Lewis Grossman, a professor of legal history at American University Washington College of Law has a fascinating piece on the antitrust appellate history of lawyer James Coolidge Carter (1828-1905) in a working paper titled "The Benefits and Evils of Competition": James Coolidge Carter's Supreme Court Advocacy.

ABSTRACT: James Coolidge Carter (1828-1905) was perhaps the most respected appellate advocate in the country at the end of the nineteenth century. He argued approximately three dozen matters before the Supreme Court, including some of the most significant cases of the Gilded Age. This essay, prepared for a forthcoming festschrift in honor of Morton Horwitz to be published by Harvard University Press, focuses on Carter's advocacy in three Supreme Court cases: U.S. v. Trans-Missouri Freight Association (1897) and U.S. v. Joint Traffic Association (1898), a pair of important early interpretations of the Sherman Antitrust Act, and Smyth v. Ames (1898), the decision that established substantive due process limits on legislative rate-setting. As a lawyer for the railroads in these matters, Carter voiced seemingly inconsistent views regarding the beneficence of the free market. One the one hand, his arguments in the antitrust cases were premised on the assertion that rate wars destructive to railroads inevitably arose in the absence of regulation. On the other hand, in Smyth, he maintained that a freely competitive system invariably resulted in railroad rates that were fair to shippers. While Carter obviously shaped his arguments to serve the particular needs of his clients, this tension also reflected an authentic ambivalence about the benefits of competition shared by many elite Gilded Age thinkers. Carter's briefs were representative of a political economy that emphasized both classical free market principles and the limits on those principles necessitated by late-nineteenth-century developments.

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