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Common Right, Due Process and Antitrust, 7 Law and Contemporary Problems 24 (1940)


The Sherman Act is the great charter of American industry. It is the elementary ordinance about which the pattern of the public control of business has been woven. It expresses the general rule, against which other statutes are elaboration, qualification, exception, accommodation to circumstance.

Over the centuries this fabric of control has been woven. Public policy, the common law, usages of trade, statutes of the realm, opinion popular and unpopular, decrees of judges have all left their impress upon it. As industry has evolved, as necessities have become evident, as ways of thought have changed, the process has continued. The larger adjustment has been made by the legislature; the detail has been worked out by the courts. The law of industry is the cumulative ,result of countless expediencies shaped· to countless occasions, a corpus distilled from myriads of decisions about everyday matters. Along a score of fronts its heritage of abstraction meets concrete situations and in the impact each is remade by the other. Its trim and tangled actuality is a product rather of the years than of intent. As a design it reveals a sprawling trimness, an order at peace with confusion, a surge towards diverse objectives. It has a beauty, a relevancy, an intricacy, an arresting quality which no blue print come to life could ever possess. Its logic is the logic of things that grow.

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