Preface

Preface This book IS not for lawyers,. but for people. Or, if that distinction sounds unfair to my legal. friends, let's say it's for laymen. The lawyers may read it if they want to. I put the citations in for them. I have tried to write it as a story, not as a thesis or a document. To me, the material makes an astonishing yarn. It is about people. It is not, at least in intention, about the law, but about lawyers; not about business, but about businessmen; and not about the government, but about government lawyers. For these people have argued, burned the midnight oil, puzzled, squirmed, gloated, and despaired over the things related here: mostly, one might think, about the meaning of a few little words here and there in the law. But, as in chess, a few little pawns can make the players squirm, and in baseball a half-inch difference in a swing will make the difference between a home-run and a pop fly. The difference here is that, in the antitrust law, a few little words can change, not only the disposition of huge SUIl1S and the location of huge plants, but eventually, the very structure of American industry.

The story told here was first rehearsed on the business page of the Christian Science Monitor, in a series of 28 pieces running through the summer of 1949. Some of the high spots then got a sort of quick telling in the spring of 1950 in the Harvard Business Review and in Harper's magaZIne.

iv PREFACE I wrote this book with the help of a number of business friends, including some antitrust lawyers. Some of them goaded me, while others' tossed documents, tomes, and decisions at me. I am a business reporter. There were times during the writing, 1 must admit~ when I was not too grateful for this urging, and felt that if I never read another page of Congressional testimony, Supreme Court opinion, or bureau ruling on the antitrust laws, it would still be too much. But now that is over, here are thanks for the shove and the help. HAROLD FLEMING NEW YORK, N. Y. April 1951 PREFACE. Contents iii 1. THE SUPREME COURT REWRITES THE LAW. Court finds meanings not intended by Congress. Judicial legislation. Southeast Underwriters· case., Portal case. Overtime case. Justices' dissenting opin ions. "Judicial withdrawal." New powers to admin istrative agencies. 2. EVERYBODY OUT OF STEP BUT THE GO VERN MENT LAWYERS . 9 Ten thousand commandments. Cloud over business policies. Quantity discounts. "Conscious parallel ac tion." Delivered prices. "Mill-net" theory. "Good faith" price competition. Exclusive dealer contracts.