Antitrust & Competition Policy Blog

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

Monday, August 28, 2017

The Roots of the Sherman Act: Farmer-Labor Republicanism and Cooperation Among Workers

Sanjukta Paul, Wayne State University explores The Roots of the Sherman Act: Farmer-Labor Republicanism and Cooperation Among Workers.

ABSTRACT: This is a draft chapter in an in-progress volume entitled Solidarity in the Shadow of Antitrust, forthcoming from Cambridge University Press in 2018. The book argues that antitrust law ought to support rather than undermine economic cooperation among working people, as it has historically done and as it threatens to do again in today's so-called "gig economy." The Sherman Act was essentially the result of a popular movement from below, not of professional deliberation by lawyers and technical experts. Historians have shown that this movement was ignited by newly politicized farmers’ groups, animated by a farmer-labor coalition as it grew in strength, and eventually won public approval across most social sectors and both major political parties. This history ought to inform our reading of the legislative history and thus of the legislative intent. The popular movement that brought about the Act advocated two means of addressing the new concentrations of economic power: 1) cooperation among working people in order to bargain more effectively with the new “trusts,” whether as sellers, buyers, or both; and 2) direct containment of monopoly through federal legislation. Legislators considering what became the Sherman Act adopted both these elements of the farmer-labor republican program, as well as that movement's implicit account of monopoly, which unified the two. The notion of monopoly that is evident in legislators' discussions focuses on both wealth and market power, and has moral and political elements as well. On this account, economic cooperation among working people is perfectly consistent with the regulation of monopoly, to which it serves as a corrective. This understanding gives additional force to the well-known point that legislators never intended to curtail labor organizing by means of the Sherman Act. Of especial relevance today, it also shows that this legislative intent was not bounded in any way by the concept of the employment relationship, which became the keystone of the labor exemption to antitrust law later on.

https://lawprofessors.typepad.com/antitrustprof_blog/2017/08/the-roots-of-the-sherman-act-farmer-labor-republicanism-and-cooperation-among-workers.html

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