Review of Industrial Organization 14: 115–122, 1999.
© 1999 Kluwer Academic Publishers. Printed in the Netherlands.
Antitrust, the Rule of Reason, and Democracy
A Letter from Justice William O. Douglas
DAVID W. BARNES
University of Denver College of Law, 1900 Olive Street, Denver, CO 80220, U.S.A.
Abstract. Professor Barnes responds to William Curran’s ﬁctional dialogue between Senator John
Sherman and philosopher John Rawls, with a ﬁctional letter from Supreme Court Justice William
O. Douglas. Professor Barnes discusses the importance of the anarcho-socialist movement of the
late nineteenth century to the adoption of the Sherman Act, the historical and logical inevitability of
adoption of a rule of reason in antitrust law, the relevance of efﬁciency to the rule of reason, and the
relationship between competition and the promotion of democratic ideals.
Key words: Antitrust, competition, anarchist, efﬁciency.
My Dear Mr. Curran:
It is indeed a pleasure to hear your voice crying out in the wilderness once again.
Since leaving the Supreme Court, I rarely hear such fervent pleas for freedom,
opportunity, and equality; indeed, I seldom heard them there in my later years. I
think, however, you do protest too much. The Sherman Act can be a marvelous
vehicle for protecting Americans and the rule of reason you blame for this nation’s
ills can easily be a tool for promoting social justice.
I. Trusts, Anarchists, and Antitrust
Poor John Sherman! In 1889, he tried to convince his colleagues in the United
States Senate that all his proposed Act would do is prohibit entrepreneurs from
forming combinations to increase the prices of the necessities of life (Kintner,
1978, p. 79). He had no objection to partnerships or corporations per se, but feared
trusts – combinations by which businesses prevented competition among them-
selves. “The sole object of such a combination is to make competition impossible”,
he said, “The law of selﬁshness, uncontrolled by competition, compels it to dis-
regard the interest of the consumer” (Kintner, 1978, p. 117). Why did Senator
Senator Sherman was concerned with the “wealth” and “opportunities” de-
stroyed by socialist anarchists and by trusts. The 38 years he was in the House
and Senate were undoubtedly tumultuous. The nation enjoyed boisterous economic
growth in the last twenty years of his service – more than doubling industrial pro-
Charles W. Delaney Jr. Professor of Law.