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Labor and the Anti-Trust Laws, 34 Illinois Law Review 769 (1940)


THIS year marks the 50th anniversary of the birth of the Sherman Law. Before the statute was three years old, in the seventh proceeding under it instituted by the government, labor activities in the course of a strike of transportation workers in Louisiana were enjoined as violative of its prohibitions. From that day to the present the Sherman Law has been successfully invoked against labor activities in a great variety of cases. The Clayton Act of 1914, that "industrial magna charta" whose words were regarded by Samuel Gompers as "sledge hammer blows to the wrongs and injustices so long inflicted upon the workers" and which President Wilson characterized as giving "a veritable emancipation" to "the working men of America, was found in fact to be important for what "it does not authorize" and to be "merely declaratory of what was the best practice always." Its practical significance came to be the addition of a remedy of a private suit for injunction under the Sherman Law to the original remedies of criminal prosecution, government suit for injunction and private action for treble damages-a change of considerable importance since about half of the proceedings against labor under the anti-trust laws after 1914 have been private injunction suits under the Clayton Act. The result was, as observed by Professor Frankfurter in 1930, that whatever uncertainty there may be about the effectiveness of the Sherman law with respect to "industrial combinations" and "economic forces," "there can be no doubt of its potency as a restraint upon the activities of organized labor . . . . when all discounts [for "the inadequacies of labor leadership" and "the consequences of economic forces"] are made, it is common ground among students of the Sherman Law, as well as among industrial and labor leaders, that it has been one of the strongest influences counteracting trade unionism in the United States."

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