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This is an echo of views which have been expressed by courts from time to time.73 The trusts, it is said, take opportunity from independent business men. They make an industrial world of employees instead of independent business men. They menace equality of opportunity and consequently that ideal of democracy which rests upon such equality.
A good deal involved in this view does not square with Mr. Brandeis' main thesis that the trust which has only size is so inefficient that it must fail or decline in the face of the successful competition of smaller and more efficient units. If the bigness which, ex hypothesi, menaces democracy is also a menace to itself, how can it menace democracy, or the privilege of doing business in the smaller units? The fact is that when the mind is convinced that excluding purposes and practices can be separated from size and suppressed apart from holding mere size illegal, the substantial objections to size, as such, disappear. All that is left is a residue of fear and bias — fear that large combinations may at any time resort to a use of their power to exclude others from the business; bias against size which took root during the period when size and excluding purposes and practices were inseparable. All reasonable concessions are made to this “fear” and this "bias" when the preponderant position of any combination is made prima facie evidence of its excluding purposes and practices and hence of its illegality. It is not at all clear from Mr. Brandeis' testimony in 1911 that he would have rejected such a position if it had been presented to his mind.
In some cases, no doubt, a bias against size may be founded upon an individual preference for the simplicity of the social and industrial order of the frontier. That may be put down as incurable. Old men may hark back to the days of their youth, but courts cannot contribute to the running of the social order of the present and the future by confining themselves to the use of such important improvements as the horse cars and gas mains of the 70's. The simplicity of the frontier is now largely prehistoric. The combinations which are, and indeed must be, permitted mean substantially an industrial world of employees rather than of independent individuals engaged in business. Under any restriction as to size, which the courts could possibly pronounce, the ideal of a frontier
73 Some of these cases have been collected, supra, note 42.
order of society with its equal opportunity for all would not conceivably be reached. It is unthinkable that any court should settle the size of industrial units by a judicial fiat which was founded only in a sentimental bias in favor of the simplicity of life as it existed in the frontier days of half a century ago.
II. Finally, it is important to observe that in the making of a prohibition upon the size of combinations and business units, the courts are in a very different position from the legislature, and that one who addresses a legislative committee on the subject very properly enters upon an expression of views and proposals which the court in considering the same subject could not entertain. The legislature may mark out lines as to size as it pleases with such qualifications and exceptions as it deems expedient. In so doing it may go upon views of economic fact which are speculative. It may even promulgate a rule founded upon the passion and prejudices of a majority.
The courts, on the other hand, in fixing the size of industrial and commercial units, must, from the nature of their function, promulgate a prohibition which is couched in general terms, universally applicable, and without illogical or detailed exceptions. It must run the chance of being too liberal and letting in some results concededly against the public interest, which the legislature must deal with in detail, rather than draw the line too tight and unduly embarrass the freedom of managers in the industrial and commercial world in their determination of the most efficient and economically proper unit of size. It must beware of basing a restriction upon economic conclusions which are uncertain and speculative, and which may be founded upon passion and prejudice rather than knowledge of essential facts and sound analysis of the situation.74
The making of the rule against perpetuities is a fair example of the observance by a court of these limitations. From the time that
74 Ontario Salt Co. v. Merchants Salt Co., 18 Grant (U.C.) 540, 549 (1871), Strong, V. C., in upholding a combination of salt producers, said: “Did I even think otherwise than I do, that this arrangement was injurious to the public interests, I should hesitate much before I acted on such an opinion, for I should feel that I was called on to relieve parties from a solemn contract, not by the mere application of some well-established rule of law, but upon my own notions of what the public good required — in effect to arbitrarily make the law for the occasion. I can conceive no more objectionable instance of what is called judge-made law, than a decision by a single judge in a new and doubtful case that a contract is not to bind on the ground of public policy.”
the rule began to take shape as a result of Lord Nottingham's decision in the Duke of Norfolk's Case,75 the English courts have constantly adopted liberal boundary lines so as to permit testators to do what they had been accustomed to do up to the point where the courts were certain that the owner of property was going too far in the creation of remote limitations. In the Duke of Norfolk's Case, which was the beginning of this process, there was a fundamental struggle to make a far stricter rule - to draw an artificial line between future interests in terms after a life estate, and future interests in terms taking effect at the death of the first taker, but after an absolute interest. Indeed, it was only by the narrowest margin that this step was avoided and Lord Nottingham's view adopted.78 The generalization thus worked out permitted Peter Thellusson to direct an accumulation of his estate for a period measured by a considerable number of lives in being at his death.77 He could, as a matter of fact, have provided for an accumulation for the period of these lives and twenty-one years thereafter. The result thus reached under the rule against perpetuities was regarded as contrary to the public interest, and the Thellusson Act was passed to control accumulations for the future. In this country some legislatures have thought the common-law rule against perpetuities too liberal, and have made the limit two lives in being, without any term of twenty-one years.
Apply to our problem the vision and judgment which Lord Nottingham brought to the creation of a test regarding the validity of future interests, and our conclusions are not in doubt: When the courts took the stand that a combination occupying a preponderant position and having excluding purposes or using unlawful excluding practices was illegal they took sure ground and have had no reason to regret it. They will equally be on safe ground if they hold that size and preponderant position are prima facie evidence of the pur
Ch. Cas. 1 (1682). 76 In the Duke of Norfolk's Case, 3 Ch. Cas. 1, Lord Chancellor Nottingham was assisted by Lord Chief Justice Pemberton, Lord Chief Justice North, and Lord Chief Baron Montague. The Lord Chancellor differed from these judges, and entered a decree in accordance with his own opinion, and disregarded the opinions of those whom he had asked to assist him. After Lord Nottingham's death, Lord North became Lord Keeper of the Great Seal, and upon a bill of review he reversed the decree of Lord Nottingham, but on appeal to the House of Lords the decree of the Lord Keeper was reversed and the decree of the Lord Chancellor affirmed.
77 Thellusson v. Woodford, 11 Ves. 112 (1805).
pose to exclude others which places upon the combination the burden of rebutting the inference of excluding purposes and practices. But when the courts undertake to say that mere size alone is against the public interest they enter the realm of uncertainty and speculation both as to economic facts and results. It is the realm where law-making “may degenerate into the mere private discretion of the majority of the court as to a subject of all others most open to difference of opinion and most liable to be affected by changing circumstances,” 78 and where the quaint language of an English judge becomes applicable:
“Public policy is an unruly horse, and when once you get astride it, you never know where it will carry you.” 79
In the decades from 1880 to 1900 a great fear of the power of new combinations spread throughout the United States. The power which came from combination had been, and was being, abused. Unlawful excluding purposes and practices were the regular accompaniments of combinations which occupied a preponderant position in the business. All such combinations, therefore, received a bad name, and combination was, in and of itself, distrusted. Since perhaps 1910 it has become each year more apparent that the evil side of combination was the existence of the excluding purposes and the use of unlawful excluding practices. Each year it has become more apparent that these excluding purposes and practices may be eliminated, and the freedom of the market secured, without touching the combination itself. It has become more and more apparent that the transition of business units from smaller to larger, and then to still larger units is a desirable side of combination, and a movement in which the public has a vital interest. It has become more and more apparent that some experiment was necessary to determine what was the most efficient size for business units in a given branch of industry, and that where the field is really free to others to enter, the determination of the question of proper size may be left to the play of economic forces. If these observations are sound, they clearly point to the drawing of the line between good and bad
78 Comment on Hilton v. Eckersley, 6 E. & B. 47 (1855) by the editors of SMITH's LEADING CASES, Mr. Justice Willes and Mr. Justice Keating (4 ed. vol. 1, p. 286). 79 Per Burrough, J., in Richardson v. Mellish, 2 Bing. 229, 252 (1824).
trusts at the place where the excluding purposes or unlawful excluding practices commence. It is sufficient protection to the public and a sufficient concession to the possible abuse of power by combinations, and any bias against them, that every combination having a preponderant position at the time it is organized must sustain the burden of rebutting a prima facie inference of excluding purposes and unlawful excluding practices.
Albert M. Kales. HARVARD LAW SCHOOL.