Present at antitrust's creation: consumer welfare in the Sherman Act's state statutory forerunners. (2024)

NOTE CONTENTSINTRODUCTIONI. STATE ANTITRUST LEGISLATION AND THE SHERMAN ACT, IN PARI MATERIA A. The Legislative Conversation Between the Senate and the States B. Federal-State Jurisdiction and the Sherman ActII. THE STATES' CONSUMER-WELFARE POLICY A. Prohibition of Restraints on Output and Prices B. Reference to Particular Commodities and Articles of Commerce C. Mens Rea RequirementIII. APPLYING THE ORIGINAL CONSUMER-WELFARE POLICY A. Rejection of Dueling Efficiencies and Williamson's "Naive Tradeoff' B. Protecting Competition on Behalf of Consumers Alone C. Narrowing the Applicability of Per Se Rules Under Section 1CONCLUSION

INTRODUCTION

In an age of ever more complex congressional enactments, theSherman Act stands out as an unusual piece of legislation. The125-year-old core of American antitrust law remains powerful andubiquitous: between 2012 and 2014, it gave rise to prosecutionsgenerating $3.4 billion in criminal fines across a range of industries.(1) Yet it was drafted with semantic economy, rendering its meaningelusive. In just ninety-six words, section 1 of the Act prohibits allagreements "in restraint of trade or commerce among the severalStates." (2) Section 2 of the Act, in eighty-two words, imposescriminal penalties on "[e]very person who shall monopolize, orattempt to monopolize ... any part of the trade or commerce among theseveral States." (3) The law's Delphic language, together withCongress's infrequent modification of the federal antitrust regime,has led some to conclude that "[t]he Sherman Act set up a commonlaw system in antitrust." (4)

Notwithstanding occasional invocations of the judiciary's"common law" authority over the Sherman Act, federal courtshave, since the Act's earliest days, expended great energyattempting to divine the legislative purpose behind it. (5) If theSherman Act were truly a blanket grant of common lawmaking authority tofederal courts, they would hardly need to undertake such searchinginquiries. The Supreme Court's and lower courts' closeattention to the Sherman Act's language and legislative historyindicates that they have sought to abide by their constitutional role asinterpreters of federal statutes. (6)

It is therefore more precise to say that the judiciary enjoys anespecially wide authority to fill statutory gaps when interpreting theSherman Act due to the Act's ambiguous language, its constancy overtime, and the fact--peculiar in light of many modern regulatoryregimes--that Congress did not assign rulemaking authority to anadministrative agency. These traits do not imply that federal courts maypursue whatever antitrust policy they find most desirable or wise;courts are obliged to follow the statute's contours to the extentthat they can perceive those contours. (7)

The judiciary's evolving understanding of the Sherman Act hasdramatically affected the scope of antitrust law in the United States.The Supreme Court first purported to strictly construe the Act'sprohibition of "every contract ... in restraint of trade,"noting that "no exception or limitation can be added withoutplacing in the act that which has been omitted by Congress." (8)The Court later set aside the statute's plain meaning (9) andseized upon the statute's use of common-law language to derive acommon-law "rule of reason" prohibiting only those agreementsthat "unreasonably" restrained trade. (10)

In the middle of the twentieth century, the dominant readingshifted. In the legislative history of the Sherman Act courts found acongressional intent to preserve competition for the benefit of otherproducers. In his famous Alcoa opinion, Judge Hand wrote that"Congress ... was not necessarily actuated by economic motivesalone. It is possible, because of its indirect social or moral effect,to prefer a system of small producers, each dependent for his successupon his own skill and character." (11) He cited the CongressionalRecord for the proposition that the Sherman Act was designed "toput an end to great aggregations of capital because of the helplessnessof the individual before them." (12) In cases like United States v.Von's Grocery Co., the Supreme Court invoked Congress'sgeneral fear of "concentration," and adopted the view that thepurpose of the Sherman Act was "to prevent economic concentrationin the American economy by keeping a large number of small competitorsin business." (13)

Change came yet again in 1966. Robert Bork, then an antitrustprofessor at Yale, delved into the Senate debates over the Sherman Actand concluded that Congress's legislative intent in enacting theSherman Act was to "maximiz[e] ... consumer welfare," withoutregard to the interests of competitors. (14) Within a decade, lowerfederal courts began signing on to this proposition. (15) In 1979 theSupreme Court unanimously concluded, "Congress designed the ShermanAct as a 'consumer welfare prescription.'" (16) The Courthas since repeatedly affirmed that interpretation. (17)

Putting aside the modern judicial consensus, the statutoryunderpinnings of the consumer-welfare theory remain shaky. The text ofthe Sherman Act, of course, says nothing about "consumerwelfare," (18) and there is a general sense within the legalacademy that Bork reached his conclusions by cherry-picking from acomplex and contradictory legislative history. (19) Subsequent studiesof the Sherman Act's legislative history revealed other policies,including producer welfare, (20) protection of consumers and smallsuppliers, (21) and prevention of an accumulation of "excessivesocial and political power" in the hands of monopolists. (22) BarakOrbach summarizes a widespread view: "The legislative history ofthe Sherman Act has been studied thoroughly during the past century.There is broad agreement today, if not consensus, that the record doesnot support the historical claims that led to the adoption of theconsumer welfare standard." (23) Reflecting

on the scholarly debate, one introductory antitrust casebook advisesstudents, "[Y]ou ... may be tempted to try to ascertain thecongressional intent underlying [the Sherman Act], No matter how muchyou research the history of the Act ... you are unlikely to findconvincing answers." (24)

This Note proposes that convincing answers can be found outside theimmediate legislative history of the Sherman Act, in a body ofpre-Sherman Act state law. In particular, thirteen state antitruststatutes and five state constitutional antitrust provisions--adoptedwhile Congress debated the Sherman Act between 1888 and 1890--shed lighton the policy underlying the Sherman Act.

Consulting state legislation may seem like an odd way to derive themeaning of a federal statute as foundational as the Sherman Act. But, asPart I argues, it follows an old canon of statutory interpretation, inpari materia, which advises courts to read related statutes in harmonywhere the statutes are part of an "integrated scheme" ofregulation. (25) Though the legislative history of the Sherman Actcontains few sure answers, there is wide agreement that Congressintended the Act to work in concert with state antitrust law, providinga federal forum for targeting the anticompetitive combinations that werealready illegal in the states. (26)

Part II explores the text of the state statutes and constitutionalamendments and finds a clear pattern among them. Far more detailed thanthe Sherman Act, these statutes and constitutional amendmentsarticulated the states' original consumer-welfare policy. Thispolicy had three major features. First, it emphasized the principle ofallocative efficiency. In other words, most state statutes prohibitedonly arrangements that had the effect of raising prices for consumers byrestricting productive output. Second, this policy protected consumersnot by reference to overall social output, but by reference toindustrial output in discrete product markets. Third, it incorporated amens rea requirement, making antitrust liability contingent on an actualintent to harm consumers through restrictions on output.

Part III brings the original consumer-welfare policy into thepresent day, briefly explaining how the approach embodied in the earlystate antitrust statutes would address some of the unresolved questionsin modern antitrust law. It first explores how the originalconsumer-welfare policy differs from competing standards advanced byscholars, such as "total welfare" and "competition"standards. It then explains why the original consumer-welfare policy isconsistent with the Supreme Court's present consumer-welfareapproach, which has generally moved antitrust law away from per seliability standards and toward individualized assessments of consumerharm. The federal courts' current focus on consumer welfare shouldbe understood not as a modern contrivance, but as a faithful applicationof the Sherman Act as it was written.

I. STATE ANTITRUST LEGISLATION AND THE SHERMAN ACT, IN PARI MATERIA

A long-established principle of statutory construction holds that"if divers[e] statutes relate to the same thing, they ought all tobe taken into consideration in construing any one of them, and it is anestablished rule of law, that all acts in pari materia are to be takentogether, as if they were one law." (27) Although "therule's application certainly makes the most sense when the statuteswere enacted by the same legislative body at the same time," (28)the Supreme Court and other federal and state courts have treatedrelated federal and state statutes in pari materia where it is clearthat one statute is intended to work in concert with the provisions ofanother. (29)

Statutes that work in pari materia might not say so on their face,and courts--including those favoring textualist interpretiveapproaches--make use of legislative history to determine whether onestatute is intended to incorporate the provisions of another. (30) AsCaleb Nelson explains,

 At a minimum, when courts conclude that two statutes are part of an integrated scheme, courts will resist reading those statutes to work at cross-purposes. More broadly, courts often try to resolve indeterminacies in one statute in a way that keeps the statute in tune with the policies behind other statutes that are in pari materia. (31)

In accord with the in pari materia canon, federal and state courtshave frequently treated judicial constructions of the Sherman Act asbinding or persuasive authority in construing analogous state statutespassed after the Sherman Act's adoption in order to avoid conflictsbetween state and federal antitrust policies. (32)

The same principle of statutory interpretation should extend toAmerica's first codified antitrust laws: the antitrust statutes andconstitutional provisions passed by state legislators while Congressdebated the Sherman Act. These statutes were part of a legislativeconversation between Congress and the states, and the Sherman Act'slegislative history shows that Congress intended the federal and stateantitrust laws to work together as part of a cohesive nationalregulatory scheme. Courts and scholars should therefore examine theSherman Act's legislative purpose in light of these state-lawantecedents.

Admittedly, reading a federal statute--particularly one asfoundational as the Sherman Act--in light of state law might strike someas unconventional. It should not. Federal courts regularly read federalstatutes in light of preexisting state common-law decisions whenCongress incorporates terms from the common law in its statutes. (33)For many years, courts (34) and commentators (35) have understood theSherman Act's operative terms as common-law terms that should beinterpreted in light of preexisting state case law, such as the MichiganSupreme Court's decision in Richardson v. Buhl, (36) of whichSenator John Sherman took particular notice on the floor of the Senate.(37) Federal courts read these state common-law precedents into theSherman Act on the understanding that Congress intended to prohibitinterstate trusts to the same extent as they had been prohibited at theintrastate level by state law. (38) But those same courts have longrelied solely on state judicial opinions to understand the state-lawlandscape at the time of the Sherman Act's adoption. (39) Thisfocus on state judicial opinions has neglected the content of locallegislation-state constitutional and statutory law--that took shape asCongress debated the Sherman Act. Congress intended for the Act to workin harmony with that legislation, just as it intended for federalantitrust law to follow the contours of common-law prohibitions onconspiracies in restraint of trade. (40) Taking notice of state statutesin pari materia provides another way of understanding the antitrustprohibitions that Congress sought to enforce at the interstate levelwhen it passed the Act.

A. The Legislative Conversation Between the Senate and the States

Seventeen states drafted measures contemporaneously with theSherman Act in a wave of public backlash against monopolistictrusts' growing control of various industries in the 1880s. (41)These trusts included famous aggregations like the Standard Oilpetroleum refining monopoly and the mighty Sugar Trust, but also a hostof trusts cornering more obscure markets such as the School Slate Trust,the Envelope Trust, and the Paper Bag Trust. (42) As William Letwinrecognized in his canonical study of the Sherman Act's legislativehistory, news articles and editorials attacking the trusts were thedaily fare of major newspapers like The New York Tunes and The ChicagoTribune in the late 1880s. (43) Opponents of the trusts, one commentatorcolorfully explained, saw the new class of monopolists as"merciless and cruel exploiters, completely selfish, living by norules and guided by no ethics." (44) Letwin summed up moremodestly, "In the years immediately before the Sherman Act, between1888 and 1890, there were few who doubted that the public hated thetrusts fervently." (45)

Elected state and federal officials channeled this popular angerinto legislative action. (46) Iowa was first out of the gate. In April1888, its legislature adopted an "Act for the Punishment of Pools,Trusts and Conspiracies." (47) At their national conventions thatsummer, for the first time, both the Democratic and Republican platformsincluded antitrust policy planks. (48) The Republicans declared their

 opposition to all combinations of capital, organized in trusts or otherwise, to control arbitrarily the condition of trade among our citizens; and ... recommend[ed] to Congress and the state legislatures, in their respective jurisdictions, such legislation as will prevent the execution of all schemes to oppress the people by undue charges on their supplies, or by unjust rates for the transportation of their products to market. (49)

That year, the Republican Convention nominated for president acompromise candidate, Benjamin Harrison, over the early front-runner,Senator Sherman of Ohio. (50) One month after his defeat, Shermansuccessfully asked the Senate to give the Senate Finance Committee, ofwhich Sherman was the former chairman and a leading member, (51)jurisdiction over all bills dealing with the regulation of the"arrangements, contracts, agreements, trusts, or combinations ...which tend to prevent free and full competition." (52)

Efforts to craft a federal antitrust law began in earnest, and twoearly bills set the initial framework of the debate. Senator JohnReagan, a Democrat from Texas, introduced the first bill on August 14,1888. Reagan's bill defined trust as the combination of capital orskill by two more persons for the following purposes:

First. To create or carry out restrictions in trade.

Second. To limit, to reduce, or to increase the production orprices of merchandise or commodities.

Third. To prevent competition in the manufacture, making, sale, orpurchase of merchandise or commodities.

Fourth. To create a monopoly. (53)

Reagan's bill made engaging in trust activities a "highmisdemeanor" subject to a ten-thousand-dollar fine and five yearsof imprisonment. It also included a jurisdictional provision thatimplicitly invoked Congress's interstate and foreign CommerceClause powers. (54)

Sherman prevailed in having Reagan's bill referred to theFinance Committee, and then introduced his own. (55) Sherman's billprohibited

 all arrangements, contracts, agreements, trusts, or combinations ... made with a view, or which tend, to prevent full and free competition in the production, manufacture, or sale of articles ... and all arrangements, contracts, agreements, trusts, or combinations ... designed, or which tend, to advance the cost to the consumer of any of such articles ..., (56)

Sherman's bill did not criminalize these combinations;instead, it called for the forfeiture of the charter of any corporateparticipant in a trust. (57) But it was far from clear that Congresscould strip a corporation of its state corporate charter. This defect,and the bill's failure to include any reference to a constitutionalgrant of power, Hans Thorelli notes, made Sherman's bill seem alittle amateurish" when compared with Reagan's. (58)

In September, the Finance Committee reported out a version ofSherman's bill that incorporated the criminalization andjurisdictional provisions of Reagan's bill, but preservedSherman's operational language referring to "arrangements,contracts, agreements, trusts, or combinations" designed or tendingto restrict competition or raise costs for consumers. (59) The FiftiethCongress then adjourned in March 1889. (60)

At the same time, state legislatures around the country convenedfor their 1889 legislative sessions and enacted a battery of stateantitrust laws. Between March and July, eight states-Kansas, Maine,North Carolina, Nebraska, Texas, Tennessee, Missouri, andMichigan--approved antitrust statutes. (61) Close on the heels of thosestatutes, in the summer and fall of 1889, a set of territories in thefar West--North Dakota, South Dakota, Wyoming, Montana, Idaho, andWashington--gathered delegates to draft constitutions in anticipation ofimpending statehood. All the constitutional conventions except SouthDakota's chose to write antitrust provisions into their first stateconstitutions. The language of these statutes and constitutionalprovisions tracked the development of a national conversation on how todefine and prohibit "trusts," both within and among thestates, and between the states and Congress.

Among the state statutes, two contained language similar to thatused in Sherman's and Reagan's bills in Congress.Kansas's law, passed on March 2, 1889, borrowed much of thelanguage of Sherman's operative provision prohibiting"arrangements, contracts, agreements, trusts or combination"tending to "prevent full and free competition" or tending to"advance, reduce or control the price or the cost to the produceror to the consumer." (63) At the end of March, Texas'slegislature adopted a law that copied Reagan's operative definitionof "trust" (64) with a few changes, including the removal ofany reference to "monopoly," and the addition of a long andunwieldy catch-all provision. (65) The Texas Legislature'sdeference to Reagan's conceptualization of the antitrust problem isunsurprising given that, in this pre-Seventeenth Amendment era, thelegislature had elected Reagan to his Senate seat. (66) The relationshipworked the other way, too: in the spring of 1890, Reagan returned toWashington with a new bill that reflected the revisions worked in Austinduring the state legislature's 1889 session. (67) While Kansas andTexas recycled Congress's approaches, other states and territoriesexperimented with new language.

This Part highlights four developments in the states thatanticipated legislative developments in Congress. First, most statesomitted any references to the impairment of "full and freecompetition," or any similarly broad "competition"language. Instead, they chose to define trusts by reference toparticular effects on the price and supply of particular articles ofcommerce. (68) Second, most of the states wrote a mens rea requirementinto their laws. It was not enough that a cartel or trust had the effectof raising prices; a "trust" was a combination formed with thepurpose or intent of harming consumers. (69) Third, a bloc of Midwesternstates-Missouri, Kansas, and Nebraska-broke up their operative antitrustprovisions into two pieces. The first section essentially prohibitedhorizontal price-fixing arrangements. (70) The second section prohibitedplacement of "the management or control" of a combination"in the hands of any trustee or trustees" with a view tofixing prices or restricting output--a prototype of the prohibition onmonopoly that would emerge in the final version of the Sherman Act. (71)Lastly, two states - Michigan and Texas-included exceptions for farmersor laborers. (72)

When the Fifty-First Congress returned to consider antitrustlegislation in December 1889, three major antitrust bills wereintroduced. The first, Sherman's, took substantially the same formas it had at the end of the Fiftieth Congress. (73) Reagan alsoreintroduced his own bill with changes to the operative"trust" definition that reflected alterations made by theTexas Legislature the previous spring. (74) A third bill, introduced bySenator James George, a Democrat from Mississippi, retainedSherman's operative definition of "trust," but followedthe lead of the Michigan and Texas legislatures by adding a specialproviso that excepted farmers and laborers from liability. (75)

In January 1890, the Finance Committee reported out an amendedversion of Sherman's bill that criminalized only those arrangementsmade "with the intention to prevent full and free competition"or to raise prices, mirroring the movement in the states toward theinclusion of a statutory mens rea requirement (76) Senator Georgeblasted this change, alleging that under the proposed language, it wouldbe "impossible ... to produce a conviction" for violation ofthe law. (77) Sherman agreed with this critique, and two months laterproposed an amendment to the bill that would eliminate the mens rearequirement and prohibit all combinations entered "with a view orwhich tend to prevent full and free competition" or "advancethe cost to the consumer." (78) In a brief exchange with George onthe Senate floor in March, Sherman disavowed the Committee's mensrea language and insisted that even a "tendency" to stiflecompetition would make a combination illegal, though not criminal:"The 'intention' can not be proved, though'tendency' can. The tendency is the test of legality. Theintention is the test of a crime." (79) No more was heard of thelaw's mens rea requirement in Senate debate. (80)

The other principal elements of the nationwide antitrust movementshowed up in the compromise Senate bill that emerged in late March.Rather than selecting one of the Sherman, Reagan, or George bills, theSenate picked all three: it kept Sherman's provisions for civilliability, adopted Reagan's definition of "trust," takenfrom the Texas law, and his provisions for criminal antitrust liability,(81) and incorporated George's proviso shielding farmers andlaborers from liability, taken from Texas and Michigan. (82)

Meanwhile, the legislative effort in the states continued. Thewinter and spring of 1890 saw the adoption of new antitrust statutes inthree more states: Mississippi, South Dakota, and North Dakota. Thesethree states split in their approaches to state antitrust regulation inways that mirrored the debate in Congress. In late February,Mississippi's legislature - breaking from the approach favored byits own Senator George--adopted a state antitrust statute that copiedTexas's statute and Reagan's proposal in Congress. (83) Justtwo weeks later, South Dakota's state legislature adopted anantitrust statute that bore a strong resemblance to the Shermanformulation, referring to combinations preventing "free, fair andfull competition" and combinations that "ten[d] to advance theprice" of certain commodities and consumer goods. (84) Meanwhile,the North Dakota Legislature chose a more laconic enactment that trackedMissouri's statute and the constitutional provisions of the newWestern states. (85) Like several other Midwestern and Plains states,North Dakota also split its antitrust statute into two parts. The firstsection dealt with horizontal price-fixing agreements, and the seconddealt with conspiracies to put the "management or control" ofa combination in restraint of trade in a monopolistic entity. (86)

Back in Congress, the federal antitrust legislation took a sharpturn on March 27 when the provision-laden compromise bill that had takenshape two days earlier was, by a narrow thirty-one to twenty-eight vote,referred to the Judiciary Committee with instructions to return apolished bill within twenty days. (87)

The Judiciary Committee, led by Senator Edmunds, a Republican fromVermont, returned a bill that had been stripped down to its essentials.(88) This version removed a raft of futures regulations introduced bySenator John James Ingalls, a Republican from Kansas, (89) as well asthe George proviso for farmers and laborers. It followed the Reagan billby explicitly premising itself on Congress's Commerce Clauseauthority, (90) and drew from the Reagan and the Sherman bills inimposing both criminal and civil liability on antitrust violators. (91)

Yet the bill's operational provisions, which defined the scopeof prohibited combinations, resembled more the emerging consensus amongstate legislatures than the bills previously advanced in Congress. Thebill followed the lead of Kansas, Missouri, Nebraska, and North Dakotain splitting its major liability provisions into ahorizontal-restraint-of-trade provision (the first section), (92) and aprovision prohibiting any person from attempting to control a trade orindustry (the second section). (93) The Edmunds bill removed allreferences to restraints on "free competition" and referredmore simply to restraints on "commerce" and "trade orcommerce." (94) The bill thus echoed state statutory andconstitutional provisions that prohibited restraints on "anyarticle of merchandise or commodity," (95) or on "any articleof manufacture or commerce. (96)

The Senate and House approved this simplified bill, which went toconference committee in mid-May. (97) In the meantime, Kentucky passedthe last pre-Sherman Act state antitrust statute. (98) Its terms werecopied from those contained in North Dakota's and Missouri'sstatutes, and it split the operative provisions into two parts(horizontal price-fixing and monopolization), limiting theirprohibitions to restraints on "any article of property, commodity,or merchandise." (99)

In June 1890, both houses of Congress approved the bill, andPresident Harrison signed it into law on July 2. (100) Three days later,the Louisiana Legislature passed an antitrust statute of its own, whoseoperative provisions largely mirrored the language of the new federallaw. (101) With the federal legislation complete, the conversationbetween Congress and the states subsided. (102)

B. Federal-State Jurisdiction and the Sherman Act

The legislative history of the Sherman Act shows not only that itsdrafters were influenced by the same trends prevailing in the states,but also that federal lawmakers used state law as their template.Congress intended for the federal antitrust statute to provide federaljurisdiction over interstate combinations that state laws could notreach. Debate in Congress did not focus closely on the question of howto define trusts. That matter appears to have been among the leastcontentious of the issues facing the Fiftieth Congress and Fifty-FirstCongress. (103) Senators of different ideological stripes and members ofthe House of Representatives saw that state and federal legislationwould need to work hand in hand to defeat the trusts. (104) The ShermanAct was meant to federalize the prohibitions that had already beenenacted at the state level. (105)

Most of the Senate debate therefore addressed (1) the source ofconstitutional authority for congressional action and (2) the properremedy. On the former question, members of the Senate sought to groundthe new antitrust legislation in Congress's Article I interstatecommerce power, (106) its Article I taxing power, (107) or its ArticleIII power to define and prescribe rules for federal courts'exercise of jurisdiction. (108) The question of Congress'sconstitutional authority was tightly connected to its remedial power.Senator Reagan's assertion of Commerce Clause authority, forinstance, allowed him to propose criminal sanctions for trust violators.(109) For Democratic Senator George and Democratic Senator George Vest,who questioned Congress's power to prohibit trusts under theCommerce Clause, (110) the alternative invocation of Congress'spower to lay and collect taxes and import duties provided an attractiveremedy: opening up the trusts to foreign competition by stripping themof tariff protection (a major Democratic policy goal at the time). (111)The major policy implications of the constitutional and remedialquestions ensured that these issues received the lion's share ofcontentious debate in the Senate. (112)

By contrast, on the question of how "trusts" would bedefined-that is, what kinds of combinations or agreements would beunlawful--there was a strong consensus in the Senate that the federalantitrust law would render illegal those same combinations prohibited bystate law. Senator Sherman described the complementary relationshipbetween the federal law and state laws:

 This bill, as I would have it, has for its single object to invoke the aid of the courts of the United States to ... supplement the enforcement of the established rides of the common and statute law by the courts of the several States in dealing with combinations that affect injuriously the industrial liberty of the citizens of these States. It is to arm the Federal courts within the limits of their constitutional power that they may cooperate with the State courts in checking, curbing, and controlling the most dangerous combinations that now threaten the business, property, and trade of the people of the United States. (113)

The purpose of the law, then, was to take the law of the states andapply it federally, so that interstate combinations could not escape theregulation of state legislatures and courts, whose powers overout-of-state corporations were limited at that time by the dormantCommerce Clause (114) and the territorial restrictions of personaljurisdiction under the rule of Pennoyer v. Neff. (115)

Sherman characterized these limitations on state power as the spurfor federal action:

 Similar contracts in any State in the Union are now, by common or statute law, null and void. Each State can and does prevent and control combinations within the limit of the State. This we do not propose to interfere with. The power of the State courts has been repeatedly exercised to set aside such combinations as I shall hereafter show, but these courts are limited in their jurisdiction to the State, and, in our complex system of government, are admitted to be unable to deal with the great evil that now threatens us. (116)

According to Sherman, the new law would set up a state-federaljurisdictional division of labor: "If the combination is confinedto a State the State should apply the remedy; if it is interstate andcontrols any production in many States, Congress must apply theremedy." (117) For this dual jurisdiction, the same rules wouldapply. Sherman explained that the federal law "will enable thecourts of the United States to restrain, limit, and control suchcombinations as interfere injuriously with our foreign and interstatecommerce, to the same extent that the State courts habitually controlsuch combinations as interfere with the commerce of a State." (118)

Senator Vest of Missouri, who objected to Sherman's proposalon constitutional grounds, going so far as to question Sherman'scapacity as a lawyer, (119) nevertheless agreed with him about the basicstructure of federal antitrust law. It would provide a remedy that wouldincorporate and fill in the gaps of state antitrust law:

 I believe there is a remedy if you take the jurisdiction of the State and also the jurisdiction of Congress and put them together, but I do not believe there is any complete remedy in the action of either separately.... ... I do not think there is any difficulty whatever as to that class of cases in which the products, or the transactions, to speak more accurately, take place entirely within the limits of a State; but we know that these trusts evade the State statutes even when they are made.... (120)

And Senator Reagan told his colleagues that whatever federallegislation they crafted would supplement a national antitrust regimeestablished primarily in the states:

 [I]f the people of this country expect salutary relief on this subject they must look to their State governments, for they have jurisdiction over the great mass of transactions out of which these troubles grow. If the Federal Government will act upon those things which relate to international and interstate commerce, and the States, responding to the necessity of the country and the complaints of the people, will act upon the branch of subjects of which the States have jurisdiction, we may, it seems to me, arrest the evil of trusts and combinations.... (121)

This understanding of the law's purpose and meaning was alsoadopted and articulated by the House of Representatives. The HouseJudiciary Committee's report on the bill to the full Housecarefully explained that the bill was designed to complement, notsupplant, state law:

 No attempt is made to invade the legislative authority of the several States or even to occupy doubtful grounds. No system of laws can be devised by Congress alone which would effectually protect the people of the United States against the evils and oppression of trusts and monopolies. Congress has no authority to deal, generally, with the subject within the States, and the States have no authority to legislate in respect of commerce between the several States or with foreign nations. It follows, therefore, that the legislative authority of Congress and that of the several States must be exerted to secure the suppression of restraints upon trade and monopolies. Whatever legislation Congress may enact on this subject, within the limits of its authority, will prove of little value unless the States shall supplement it by such auxiliary and proper legislation as may be within their legislative authority. (122)

Such statements indicate that, in enacting the Sherman Act,Congress saw itself as establishing a federal antitrust jurisdictionthat was only one part of a coherent national regulatory system, rootedin the "established rules of the common and statute law" ofthe states. (123) This "integrated scheme" of regulationpresents a classic in pari materia case for intertextual statutoryinterpretation. (124) The states' statutory declarations of policythus form the essential backdrop for understanding the federallaw's broad prohibition on monopolies and arrangements "inrestraint of trade or commerce." (125)

II. THE STATES' CONSUMER-WELFARE POLICY

With the Sherman Act, Congress committed the federal government toa national program of trust regulation first initiated in the states.This Part identifies the states' antitrust policy by examining thetext of the states' antitrust legislation.

Popular frustration with trusts was not evenly distributed acrossthe United States. Figure 1 displays a map of states that adopted stateantitrust statutes or constitutional provisions prior to the signing ofthe Sherman Act in July 1890.

(126)

As Figure 1 illustrates, early state antitrust legislation was aregional phenomenon that occurred principally in the Midwest and Plainsstates and the newly created states of the Mountain West and PacificNorthwest. Several states of the old Confederacy also enacted earlyantitrust legislation. Maine was the sole New England state to passantitrust legislation, and the Mid-Atlantic region was not represented.

This pattern of legislative adoption across predominantlyagricultural states is consistent with most historical accounts, whichtypically credit populist farmers and their interest groups--among them,The Grange and the Farmers' Alliance--with sowing the seeds ofantitrust policy in the late nineteenth century. (127) These samehistorical accounts sometimes suggest that the populists pushing thedevelopment of state antitrust legislation intended for such legislationto serve as a protectionist bulwark against out-of-state corporations.This view of state antitrust legislation, which draws upon broadreadings of economic and social history, credits state laws as flexibletools for "restoring] the balance of economic power" writlarge. (128) In other words, antitrust legislation was not so much aregime to protect consumers as an effort by small businessmen andfarmers to wring profits out of powerful corporate competitors andsuppliers. (129)

This Note departs from past approaches by examining the contents ofthe state antitrust statutes themselves. By and large, the statutorylanguage does not support the view that the agricultural states of theSouth and West adopted antitrust legislation as protectionist or as"anti-bigness" weapons against the advances of powerfulcorporations. The prairie populists--or at least the pieces oflegislation they enacted-were doing something else: they wereprohibiting only those combinations and business practices that harmedconsumers through restrictions on the production of a given commodity orarticle of commerce. In other words, they were working toward a policyof consumer welfare.

Before examining the language of the statutes, a brief explanationof "consumer welfare"--a term subject to some dispute (130) inthe antitrust community today--is required. This Note adopts HerbertHovenkamp's definition of consumer welfare, which is based on hisobservation of the policy of American antitrust regulators and courts:"[A]ntitrust policy in the United States follows a consumer welfareapproach in that it condemns restraints that actually result in monopolyoutput reductions, whether or not there are offsetting efficiencies andregardless of their size." (131) Under this definition, consumerwelfare refers to the preservation of consumer surplus generated underconditions of allocative efficiency, in which the price of an article ofcommerce is determined by its marginal cost of production. Prices andoutput in a market characterized by allocative efficiency are Paretooptimal, which means that any contrary allocation of resources would endup harming one or more market participants.

What does allocative efficiency look like? The outline is afamiliar one. Consider a retail automotive market for sedans. Underideal conditions, carmakers like Ford or Volkswagen will seek tomaximize profits by making and selling as many of these cars aspossible. They will make sedans until they can no longer profit fromsales--that is, until the price of the last vehicle sold equals themarginal cost of its production (marginal cost). Consumers will purchasethe sedans so long as the value consumers derive from them (marginalbenefit) is greater than or equal to the purchase price. The price isset where marginal benefit equals marginal cost, so that the maximumnumber of sedans is produced at the lowest possible price. This priceand output level is allocatively efficient and Pareto optimal because,without a change in the supply or demand curves, neither thecarmakers' profits ("producer surplus") nor theconsumers' value-for-money ("consumer surplus") can beincreased without decreasing the other.

As Hovenkamp explains, antitrust policy in the United Statesfollows a "consumer welfare" approach in that it condemns"monopoly output reductions"--that is, instances where aproducer (or group of producers) with sufficient market power to setoverall market output has decreased output to increase producer surplus.(132) This increase in producer surplus comes at the expense of consumersurplus, since consumers must pay above-market prices. It also creates"deadweight loss," or the destruction of wealth that wouldhave been created for consumers and producers if output remained at thePareto-optimal level. The welfare consequences of allocativeinefficiency in a monopoly market are illustrated in Figure 2.

(133)

Simply put, a consumer-welfare policy aims to preserve consumersurplus by prohibiting these reductions of output. This is the policy ofantitrust law in the United States today, and, as this Part argues, itwas the antitrust policy adopted by state legislatures across thecountry from 1888 to 1890.

Consider Missouri's antitrust statute, (134) which bore aclose resemblance to several of the pre-Sherman Act state antitrustmeasures. (135) A full reproduction of its operative provisions conveysthe statute's purposes:

SECTION 1. If any corporation organized under the laws of this orany other state or country, for transacting or conducting any kind ofbusiness in this state, or any partnership or individual or otherassociation of persons whosoever, shall create, enter into, become amember of or a party to any pool, trust, agreement, combination,confederation or understanding with any other corporation, partnership,individual, or any other person or association of persons, to regulateor fix the price of any article of merchandise or commodity, or shallenter into, become a member of or a party to any pool, agreement,contract, combination or confederation to fix or limit the amount orquantity of any article, commodity or merchandise, to be manufactured,mined, produced or sold in this state, shall be deemed and adjudgedguilty of a conspiracy to defraud, and be subject to indictment andpunishment as provided in this act.

Sec. 2. It shall not be lawful for any corporation to issue or toown trust certificates, or for any corporation, agent, officer oremployes [sic], or the directors or stockholders of any corporation, toenter into any combination, contract or agreement with any person orpersons, corporation or corporations, or with any stockholder ordirector thereof, the purpose and effect of which combination, contractor agreement shall be to place the management or control of suchcombination or combinations, or the manufactured product thereof, in thehands of any trustee or trustees, with the intent to limit or fix theprice or lessen the production and sale of any article of commerce, useor consumption, or to prevent, restrict or diminish the manufacture oroutput of any such article. (136)

Reduced to its critical language, section 1 of the Missouri lawprohibited any "agreement ... to regulate or fix the price of anyarticle of merchandise or commodity, or ... to fix or limit the amountor quantity of any article, commodity or merchandise, to bemanufactured, mined, produced or sold in this state." Section 2 ofthe law prohibited monopolization, just like section 2 of the ShermanAct. (137) Though the statute does not use the word"monopoly," the language of the statute unambiguously refersto activities that we would now call monopolistic. (138) It also usesthe language of "trusts," which then connoted a meaning wewould now understand as synonymous with monopolies. (139) A singlebusiness organization and its agents could be liable under section 2where the organization was structured "with the intent to limit orfix the price or lessen the production and sale of any article ofcommerce, use or consumption, or to prevent, restrict or diminish themanufacture or output of any such article." (140)

Three conclusions may be drawn from the face of this statute'sdefinition of liability for conspiracies in restraint of trade. First,agreements and combinations that did not reduce output and raise pricesdid not run afoul of the law. Second, Missouri lawmakers cared aboutprice and output effects on particular commodities and articles ofmerchandise, not overall social output or price effects. Third, underthe antimonopoly provision of section 2, a business organization had toact with "the intent" to control output or prices. Monopoliesachieved through productive efficiency, without any intention ofcontrolling prices or output, did not violate the terms of the statute.

As explained below, each of these three basic features turned up ina majority of the states' antitrust statutes or constitutionalprovisions. Together, they formed the states' originalconsumer-welfare policy at the time of the Sherman Act's adoption.

A. Prohibition of Restraints on Output and Prices

At the heart of most of the states' antitrust enactments wereconcrete, specific definitions of antitrust liability. Table 1 shows thestate-by-state breakdown of approaches on the first prong of thestates' consumer-welfare policy: a textual focus on price andoutput controls.

As Table 1 illustrates, a majority of the state enactmentsprohibiting trusts and other conspiracies in trade referred only toconspiracies to "fix or limit the amount or quantity" ofproduction and to "regulate or fix the price" of consumergoods. These legislatures and constitutional conventions understood theconnection between supply and demand, and the terms of the statutesreflect a policy of promoting allocative efficiency.

Consider North Carolina's antitrust statute, which defined"trust" in these terms:

[A]n arrangement, understanding or agreement, either private orpublic ... for the purpose of increasing or reducing the price of theshares of stock of any company or corporation, or of any class ofproducts, materials or manufactured articles, beyond the price thatwould be fixed by the natural demand for or the supply of such shares,products, materials or manufactured articles.... (142)

This understanding of "trusts" and their harms was sharedacross the continent in the emerging states of the far West, whose entryinto the Union realigned American politics by facilitating a ruralcoalition of Southern and Western states capable of sustaining a"rising tide of Populism." (143) The depth of antitrustfeeling in this region was such that the states chose to write antitrustprovisions into their first state constitutions. (144) But they adoptedan antitrust framework that reflected the same policy principlearticulated in Missouri and North Carolina. Constitutional delegates inWashington, Idaho, Montana, and North Dakota condemned only thoseagreements that had the effect of raising consumer prices throughrestrictions on output. (145) Typical among these was the MontanaConstitution, which provided:

 No incorporation, stock company, person or association of persons in the state of Montana, shall directly, or indirectly, combine or form what is known as a trust, or make any contract with any person or persons, corporation, or stock company, foreign or domestic, through their stockholders, trustees, or in any manner whatever, for the purpose of fixing the price, or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people. (146)

Even in states where antitrust legislation departed from the easilycomprehensible formulations offered by the likes of Missouri, NorthCarolina, and Montana, antitrust laws targeted conspiracies to reduceoutput. Nebraska, for instance, adopted a two-part statute thatresembled the final version of the

Sherman Act: its first section prohibited cartel arrangements inwhich "a common price shall be fixed for any ... article orproduct, or whereby the manufacture or sale thereof shall belimited"; (147) its second section prohibited "[p]ooling ...in the nature of what are commonly called trusts, for any purposewhatever," without defining the kind of behavior that constituted atrust. (148) But reference to contemporary sources makes clear that whatwas "commonly called" a trust in this era--an"organization formed mainly for the purpose of regulating thesupply and price of commodities" (149)--was understood as the sameland of output-restricting combination condemned by Nebraska'sneighbors, Missouri (150) and Iowa. (151)

A sizeable minority of states adopted provisions with more generalprinciples, in addition to price-fixing output restrictions.Michigan's antitrust statute, for example, prohibited combinations

 the purpose or object or intent of which shall be to limit, control, or in any manner to restrict or regulate the amount of production or the quantity of any article or commodity to be raised or produced by mining, manufacture, agriculture or any other branch of business or labor, or to enhance, control or regulate the market price thereof, or in any manner to prevent or restrict free competition in the production or sale of any such article or commodity. (152)

Though Michigan's legislature did not hew narrowly to thelanguage employed in other states, its only deviation from the formulaicrecitation of market prices and output was a prohibition on combinations"prevent[ing] or restrict[ing] free competition in the productionor sale" of a commodity. (153) But the legislature'sinvocation of this broad policy goal on the heels of specific andnarrowly tailored criteria for liability is a classic instance wherecourts would apply the ejusdem generis canon, which provides,"Where general words follow specific words in a statutoryenumeration, the general words are [usually] construed to embrace onlyobjects similar in nature to those objects enumerated by the precedingspecific words." (154) The same principle of construction wouldapply to the antitrust statutes of Tennessee (155) and South Dakota,(156) as well as the Wyoming Constitution's antitrust provision,(157) all of which combined specific references to price-fixing andoutput restrictions with broad, almost nonjusticiable appeals to"legitimate trade" and the "public good."

Only three states-Kansas, Texas, and Mississippi--attempted todefine a broader antitrust policy. These three stood outside theconsensus policy of the other states, which limited antitrust liabilityto combinations designed to depress output and raise prices forconsumers. Kansas, which promulgated a standard monopolization provisionin section 2 of its antitrust statute, (158) also crafted a broaderprohibition in section 1 designed to protect consumers and producersfrom changes in price. It prohibited not only arrangements impairing"full and free competition," but also all combinations"which tend to advance, reduce or control the price or the cost tothe producer or to the consumer of any such products or articles."(159) It thus reached business organizations that lowered prices forconsumers while hurting other producers or suppliers in the process,either through productive efficiency or through monopsony power.

Texas's law (and Mississippi's, (160) which copiedTexas's operative definition nearly word for word) enactedsimilarly broad prohibitions. Its antitrust statute defined"trust" by way of five illegal purposes: first, to"create or carry out restrictions in trade"; second, to limitproduction or increase or reduce prices; third, to "preventcompetition"; fourth, to fix prices "at any standard orfigure"; and fifth, to enter into an "agreement of any kind... to pool, combine, or unite any interest ... with the sale ortransportation of any such article or commodity that its price might inany manner be affected." (161) Like the Kansas statute,Texas's prohibition on combinations that had any effect oncommodity prices could be used to punish businesses that succeeded inlowering consumer prices through new productive efficiencies. This wasnot a narrow consumer-protection statute; it was a legislativesledgehammer designed with what one scholar and one corporate lawyercalled "an intent to terrify" big business. (162)

This "intent to terrify" is noteworthy because it was anoutlier among the states' antitrust policies. Texas's uniqueapproach is especially significant given that it was one of the earlymovers in state antitrust legislation. Ten of the eleven states (163)(all except Mississippi) that adopted antitrust legislation after Texasbut before the Sherman Act eschewed Texas's wide-rangingprohibitions and followed the approach of Iowa and Missouri, proscribingonly business arrangements that impaired allocative efficiency.

B. Reference to Particular Commodities and Articles of Commerce

The second prong of the states' consumer-welfare policy wasits commitment to preserving allocative efficiency with respect to theproduction of particular commodities and articles of commerce. The statestatutes sought to keep price and output in individual product marketsat their natural, competitive level; they did not seek to maximizesocial welfare. (164) Table 2 tracks the state statutes' referencesto effects on particular commodities and articles of commerce. As Table2 indicates, a majority of jurisdictions used legislative languagefocused on price and output effects for discrete classes of products.

Under this prong of the states' original consumer-welfarepolicy, violators of the antitrust laws must have actually raised theprevailing price or lowered the total output of some particular"product of the soil or ... article of manufacture orcommerce," as the North Dakota Constitution provided. (166) Twostate statutes even went so far as to provide nonexhaustive lists ofsuch products: Iowa enumerated "oil, lumber, coal, grain, flour,provisions or any other commodity or article whatever"; (167) SouthDakota reeled off "farm machinery, implements, tools, supplies, andlumber, wood and coal," and also referred specifically to productdumping in "wheat, corn, oats, barley, flax, cattle, sheep, hogs,or other farm or agricultural products." (168) Other states usedmore general terms, such as "the price of any merchandise,"(169) or "any article or commodity to be raised or produced bymining, manufacture, agriculture or any other branch of business orlabor," (170) or "any article of commerce, use, orconsumption." (171) Even Michigan's statute, which referred inbroad terms to the impairment of "free competition," referredto the restriction of such competition specifically "in theproduction or sale of any such article or commodity." (172)

Here, too, Mississippi and Texas adopted statutes that divergedfrom the consensus policy: their definition of trust encompassed any"restrictions in trade," without explicit textual regard toprice effects on particular commodities or goods. (173) But this broaderlanguage represented a minority position: the text of nearly every stateantitrust law adopted a clearer standard for liability that was focusedon price and output effects with regard to particular markets.

C. Mens Rea Requirement

Lastly, a majority of state statutes and constitutional provisionsprohibited only business practices that exhibited a purpose or intent torestrict output and control prices. Although several states criminalizedor prohibited arrangements that merely resulted in a restriction onoutput, the bulk of states took a narrower approach. Table 3 lists thestates' liability standards for cartel and trust prohibitions.

North Carolina, for example, prohibited only those arrangements"entered into ... for the purpose" of fixing prices. (175)Michigan proscribed agreements with the "purpose or object orintent" to control output. (176) Tennessee banned combinations"for the purpose of injuriously affecting the legitimate trade andcommerce ... or to limit the supply or production ... for the purpose ofspeculation." (177) Three states-Kansas, Kentucky, and NorthDakota-split their antitrust policies with regard to mens rea.Kansas's prohibition on horizontal arrangements in restraint oftrade covered all arrangements "made with a view or which tend toprevent ... competition," (178) but its antimonopolizationprovision required "intent to ... lessen the production" of anarticle of commerce. (179) Kentucky did just the reverse, requiringproof of intent or purpose with respect to horizontal arrangements butimposing strict liability for the antimonopolization provision of thestatute. (180) The North Dakota Constitution prohibited any combination"having for its object or effect" (181) the fixing of pricesor production but limited criminal penalties in its statutory antitrustenactment to "agreement[s] ... to regulate or fix" prices oroutput. (182)

North Dakota's example is instructive. Except for theconstitutional provisions, the states' legislative antitrustenactments were criminal statutes, so a consensus policy in favor of amens rea requirement is unsurprising: the maxim that "[t]here canbe no crime, large or small, without an evil mind" (183) is anenduring principle of English and American law. (184) Although severalstates chose to pursue the trusts more aggressively by making trust-likebehavior a strict-liability crime, most states chose to follow a moretraditional mens rea approach in the criminal law governing the trusts.

III. APPLYING THE ORIGINAL CONSUMER-WELFARE POLICY

When Congress enacted the Sherman Act, it borrowed aconsumer-welfare policy from the states. That policy is the preventionof deadweight loss resulting from monopoly output reductions inindividual markets for goods and services. Antitrust law should concernitself with no more than this, and no less. More pointedly, thisapproach entails navigating a middle course between the Scylla of a"total-welfare" model on one side, and the Charybdis of anambiguous "competition" theory of antitrust on the other.

A. Rejection of Dueling Efficiencies and Williamson's"Naive Tradeoff"

Scholars have debated how courts ought to weigh conflicts betweentwo kinds of efficiency: allocative efficiency and productiveefficiency. As we have seen, allocative efficiency is a Pareto optimalmarket state in which the price for a given product is equal to itsmarginal cost, and under which consumer and producer surplus ismaximized. Productive efficiency simply refers to a reduced marginalcost of production, and is associated with the kind of cost savings wecommonly think of as "efficiency," including reduced labor oroverhead costs. In a market characterized by allocative efficiency,productive efficiencies are obviously good for consumers: when aproducer realizes productive efficiency gains (as in Henry Ford'sassembly line), and reduces the marginal cost of its product (as withthe Model T), those savings are passed along to consumers in the form oflower prices.

The problem is that productive efficiency does not always coincidewith allocative efficiency. Consider the classic "naivetradeoff' hypothetical posed nearly fifty years ago by OliverWilliamson, in which a court or regulator evaluates the legality of ahorizontal merger between firms that creates productive efficiencies(reducing the cost of production), but gives the newly enlarged firm asufficient command of the market to reduce output and raise prices forconsumers, creating allocative inefficiency. (185) This scenario isdepicted in Figure 3.

(186)

Williamson and other proponents of a "total-welfare"theory of antitrust law asked courts and federal regulators to weigh therelative size of A, (deadweight loss) and A2 (productive efficiencies)to determine whether the merger is illegal. According to Williamson, ifthe productive efficiencies outweighed the deadweight loss, regulatorsand courts should allow the firm to make an efficiency defense and avoidantitrust liability. (187) Total-welfare theory reasons that thisoutcome maximizes social welfare: after all, those cost savings fromproductive efficiencies go somewhere (specifically, to firms and theirshareholders) and free up resources for the production of other goods,enriching consumers overall. (188) Under the total-welfare approach,regulators prioritize the wealth of all consumers, rather than that ofconsumers in a particular market ("consumer welfare" or"purchaser welfare"). (189)

As a policy option, the total-welfare model has much to recommendit. But it is inconsistent with the consumer-welfare policy adopted bythe states and Congress between 1888 and 1890. As we saw in Part II,most state antitrust statutes narrowly condemned output restrictions onparticular commodities or articles of commerce; they were not written tomaximize overall social output. (190) Under the originalconsumer-welfare standard, a court will not attempt to balanceproductive and allocative efficiencies: the demonstrated creation of anallocative inefficiency (deadweight loss) in a given market suffices toprohibit the combination.

The Supreme Court has not grappled with the total welfare theorysince it explicitly adopted a consumer-welfare policy in Reiter v.Sonotone Corp., (191) and federal courts have resisted the "naivetradeoff" offered by Williamson and other advocates of thetotal-welfare approach. Instead, courts have maintained consumer welfare(allocative efficiency) as the ultimate criterion of the antitrust laws.As Robert Pitofsky notes, "There is no recorded instance in theUnited States where an otherwise illegal merger was found by a court notto violate the antitrust laws because of the presence of [productive]efficiencies." (192) A representative example can be found in JudgeCollyer's opinion in Federal Trade Commission v. CCC Holdings, Inc.(193) In that case, the trial court held that it would allow theintroduction of productive efficiencies as a defense to liability onlyif there was concrete evidence that the benefits of such efficiencieswould be passed on to consumers in the relevant market--that is, only ifconsumer welfare remained unharmed. (194) The federal courts'current approach to productive efficiencies presents a straightforwardimplementation of the original consumer-welfare policy.

B. Protecting Competition on Behalf of Consumers Alone

Notwithstanding federal courts' steady application of aconsumer-welfare policy, there remains a persistent call among antitrustscholars for its abandonment in favor of a broad procompetition policysaid to be rooted in the original public understanding of the ShermanAct. (195) Orbach, for instance, argues that antitrust law should be"nuanced, dynamic, and imperfect" and urges that JudgeHand's approach be "reheard" so as to "preserve somedegree of flexibility" in condemning business arrangements thatharm competition, broadly defined. (196) John Kirkwood advances asimilar but narrower argument that antitrust ought to prohibitanticompetitive transfers of wealth, whether caused by buyers orsellers. (197)

The conflict between the pro-"competition" standard andthe consumer-welfare standard arises neatly in the current debate overantitrust's treatment of monopsonies, in which a single purchaser(or a group of purchasers) uses its market power to reduce the pricepaid to suppliers of a particular good. Kirkwood and Robert Lande arguethat the antitrust laws should prohibit such "anticompetitivebehavior by buyers." (198) The argument against monopsony wasraised by some commentators in the lead-up to a failed merger attemptbetween Comcast and Time Warner Cable. Critics of the deal argued thateven if the merger would not have disadvantaged consumers, it would haveharmed the providers of television content (such as HBO or Disney) bygiving an enlarged Comcast yet more leverage to negotiate low wholesalerates for programming. As one journalist wrote, "It would be hardto successfully make the case that their market power as sellers ispitted against consumers. Instead, the antitrust scrutiny at the JusticeDepartment and Federal Trade Commission will likely center on ...monopsony." (199) The merger was eventually scuttled under pressurefrom the Federal Communications Commission, which appears to have beenprincipally concerned with a monopsony problem: that the newentity's command of the broadband internet service market wouldallow it to squeeze streaming content providers, like Netflix. (200)

Yet under the original consumer-welfare standard discussed above,monopsony does not violate the antitrust laws unless evidence shows thatmonopsony inevitably leads to reduced output and higher prices forconsumers. (201) Just as productive efficiencies are ultimatelyirrelevant to antitrust liability unless they help to preserve consumersurplus, monopsonies are irrelevant to the enforcement of the antitrustlaws unless they ultimately diminish consumer surplus. Put differently,the consumer-welfare standard is indifferent to the balance of interestsbetween the likes of Comcast and Netflix unless that balance somehowdiminishes the wealth of consumers. (202)

C. Narrowing the Applicability of Per Se Rules Under Section 1

The original consumer-welfare policy prohibited only thosearrangements entered into with the "purpose" or"intent" of raising consumer prices and restricting output.(203) This mens rea requirement is consistent with the SupremeCourt's conclusion in United States Gypsum Co. that intent tomanipulate prices is an element that must be proved in every Sherman Actcriminal prosecution. (204) It also lends support to the argument thatsection r of the Sherman Act should not impose civil liability for perse prohibitions on business practices that do not necessarily harmconsumer welfare, consistent with the Supreme Court's jurisprudenceover the past four decades. (205) As the courts have recognized, some ofthese practices, formerly illegal per se, are entered into "not outof disinterested malice, but in ... commercial self-interest" thatis essentially procompetitive. (206) The states' mens rearequirement suggests that per se illegality under section 1 should bereserved for cartel-like agreements that are explicitly designed torestrict output or raise market prices--those agreements that areactually "formed for the purpose and with the effect" ofhurting consumers. (207) All other forms of agreement must be submittedto an analysis that takes intent into account, "not because a goodintention will save an otherwise objectionable regulation or thereverse; but because knowledge of intent may help the court to interpretfacts and to predict consequences. (208)

CONCLUSION

The Sherman Act's capacious language helps explain thepinball-like trajectory of American antitrust law over its long life, alife that has seen various governing principles come and go like so manychanges in political fashion. (209) For close to forty years, however,federal courts have increasingly embraced a single principle-consumerwelfare-as antitrust's guiding policy. This approach has broughtcoherence to the law, albeit dogged by lingering doubts about itspedigree: many continue to suspect that the consumer-welfare principleis just an expedient of the Chicago school of economics, a convenientway of rationalizing an otherwise opaque text.

Discerning the organizing policy of the Sherman Act would be mucheasier, of course, if Congress had laid out a more specific standard forliability in the text of the Sherman Act itself. But its failure to doso does not render the statute incomprehensible. If Congress meantanything by the Sherman Act, it meant to supplement the states'early antitrust efforts--through case law and through legislation--witha federal statute that would impose antitrust liability at theinterstate level to the same extent as state law did at the intrastatelevel. Congress may have punted in defining antitrust liability, but thestates did not. Courts and scholars need not apologize for grafting aconsumer-welfare policy onto the Sherman Act. Consumer welfare has beenthere since the beginning.

(1.) See Antitrust Div., Criminal Enforcement Fine and Jail ChartsThrough Fiscal Year 2014, U.S. Dep't Just. (June 25, 2015),http://www.justice.gov/atr/criminal-enforcement-fme-and-jail -charts[http://perma.cc/HFA5-J9TT]; Antitrust Div., Sherman Act ViolationsYielding a Corporate Fine of $10 Million or More, U.S. Dep't Just.(Apr. 22, 2015), http://www.justice.gov/sites/default/files/atr/legacy/2015/04/23/shermanio.pdf[http://perma.cc/VB5P-59AY].

(2.) 15 U.S.C. [section] 1 (2012).

(3.) Id. [section] 2.

(4.) Frank H. Easterbrook, Workable Antitrust Policy, 84 Mich. L.Rev. 1696, 1705 (1986); cf. Andrew S. Oldham, Sherman's March(in)to the Sea, 74 Tenn. L. Rev. 319, 325 (2007) (arguing thatcommon-law judicial interpretation has "unmoored the Sherman Actfrom its statutory foundations and set it adrift in a stormy sea ofillegitimacy").

(5.) See infra notes 7-17 and accompanying text.

(6.) See, e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 328n.7 (1991); Associated Gen. Contractors of Cal., Inc. v. Cal. StateCouncil of Carpenters, 459 U.S. 519, 531 (1983); Apex Hosiery Co. v.Leader, 310 U.S. 469, 489 (1940); Standard Oil Co. of N.J. v. UnitedStates, 221 U.S. 1, 50 (1911); Hamilton Chapter of Alpha Delta Phi, Inc.v. Hamilton Coll., 128 F.3d 59, 63-64 (2d Cir. 1997); McGahee v. N.Propane Gas Co., 858 F.2d 1487,1497-98 (nth Cir. 1988); GTE SylvaniaInc. v. Cont'l T.V., Inc., 537 F.2d 980,1019 & n.2 (9th Cir.1976), affd, 433 U.S. 36 (1977); cf. Tex. Indus., Inc. v. RadcliffMaterials, Inc., 451 U.S. 630, 644 (1981) ("It is very true that weuse common-law terms here and common-law definitions in order to definean offense which is in itself comparatively new, but it is not acommon-law jurisdiction that we are conferring upon the circuit courtsof the United States." (quoting 21 CONG. Rec. 3149 (1890)(statement of Sen. Morgan))).

(7.) See U.S. CONST, art. I, [section] 1 ("All legislativePowers herein granted shall be vested in a Congress of the UnitedStates.... "); id. art. III, [section] 1 ("The judicial Powerof the United States, shall be vested in one supreme Court, and in suchinferior Courts as the Congress may from time to time ordain andestablish.").

(8.) United States v. Trans-Mo. Freight Ass'n, 166 U.S. 290,328 (1897) (emphasis added).

(9.) See Chicago Bd. of Trade v. United States, 246 U.S. 231, 238(1918) ("[T]he legality of an agreement or regulation cannot bedetermined by so simple a test, as whether it restrains competition.Every agreement concerning trade, every regulation of trade, restrains.To bind, to restrain, is of their very essence.").

(10.) See, e.g., Standard Oil, 221 U.S. at 51 ("It is certainthat [the Act's] terms, at least in their rudimentary meaning, tooktheir origin in the common law."); United States v. Addyston Pipe& Steel Co., 85 F. 271, 278-79 (6th Cir. 1898), aff'd, 175 U.S.211 (1899).

(11.) United States v. Aluminum Co. of Am. (Alcoa), 148 F.2d 416,427 (2d Cir. 1945).

(12.) Id. at 428 & n.i (citing 21 CONG. Rec. 2457, 2460 (1890)(statement of Sen. Sherman)).

(13.) 384 U.S. 270, 274-75 (1966).

(14.) Robert H. Bork, Legislative Intent and the Policy of theSherman Act, 9 J.L. & ECON. 7, 48 (1966).

(15.) See, e.g., GTE Sylvania Inc. v. Cont'l T.V., Inc., 537F.2d 980, 1003 & n.39 (9th Cir. 1976), aff'd, 433 U.S. 36(1977).

(16.) Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) (quotingRobert Bork, The Antitrust Paradox 66 (1978)).

(17.) See Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct.1351, 1363 (2013); Leegin Creative Leather Prods., Inc. v. PSKS, Inc.,551 U.S. 877, 906 (2007); Brooke Grp. Ltd. v. Brown & WilliamsonTobacco Corp., 509 U.S. 209, 221 (1993); Nat'l Collegiate AthleticAss'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85,107 (1984).

(18.) The definition of "consumer welfare" is itself thesubject of considerable debate. This Note follows the most commonunderstanding of the phrase, as a byword for allocative efficiency. Seeinfra Part II.

(19.) See, e.g., Christopher Grandy, Original Intent and theSherman Antitrust Act: A Re-Examination of the Consumer-WelfareHypothesis, 53 J. Econ. Hist. 359 (1993); Thomas W. Hazlett, TheLegislative History of the Sherman Act Re-Examined, 30 Econ. INQUIRY 263(1992); Robert H. Lande, The Rise and (Coming) Fall of Efficiency as theRuler of Antitrust, 33 Antitrust Bull. 429, 451 n.81 (1988) ("Borkselectively interprets Congressional will to suit his own agenda; hedoes not defer to a Congress that had different goals."). But seeDaniel A. Crane, The Tempting of Antitrust: Robert Bork and the Goals ofAntitrust Policy, 79 Antitrust L.J. 835, 840-44 (2014).

(20.) See Grandy, supra note 19, at 359.

(21.) See John B. Kirkwood, The Essence of Antitrust: ProtectingConsumers and Small Suppliers from Anticompetitive Conduct, 81 FordhamL. Rev. 2425, 2433-39 (2013).

(22.) Robert H. Lande, Wealth Transfers as the Original and PrimaryConcern of Antitrust: The Efficiency Interpretation Challenged, 34Hastings L.J. 65, 83 (1982).

(23.) Barak Orbach, How Antitrust Lost Its Goal, 81 Fordham L. Rev.2253, 2256 (2013).

(24.) Thomas D. Morgan, Cases and Materials on Modern Antitrust Lawand Its Origins 24-25 (4th ed. 2009).

(25.) Caleb Nelson, Statutory Interpretation 487 (2011).

(26.) See, e.g., California v. ARC Am. Corp., 490 U.S. 93, 102(1989) ("Congress intended the federal antitrust laws tosupplement, not displace, state antitrust remedies."); HerbertHovenkamp, State Antitrust in the Federal Scheme, 58 IND. L.J. 375, 375(1983).

(27.) United States v. Freeman, 44 U.S. (3 How.) 556, 564 (1845);see United States v. Stewart, 311 U.S. 60, 64-65 (1940); William N.Eskridge, Jr. et al., Cases and Materials on Legislation 1066-81 (4thed. 2007); William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev.621, 663 n.169 (1990); Abbe R. Gluck & Lisa Schultz Bressman,Statutory Interpretation from the Inside--an Empirical Study ofCongressional Drafting, Delegation, and the Canons: Part I, 65 STAN. L.Rev. 901, 927 fig.1 (2013); Quintin Johnstone, An Evaluation of theRules of Statutory Interpretation, 3 U. Kan. L. Rev. 1, 4 (1954)("All courts make great use of statutes in pari materia....").

(28.) Erlenbaugh v. United States, 409 U.S. 239, 244 (1972).

(29.) See, e.g., Moore v. Chesapeake & Ohio Ry. Co., 291 U.S.205, 214 (1934) (reading the Federal Safety Appliance Act in parimateria with an analogous Kentucky statute); Fed. Deposit Ins. Corp. v.Am. Bank Tr. Shares, Inc., 460 F. Supp. 549, 559-60 (D.S.C. 1978);Underwater Constr. v. Shirley, 884 P.2d 150,155 (Alaska 1994); Wilson v.Freedom of Info. Comm'n, 435 A.2d 353, 359 (Conn. 1980); BethlehemSteel v. Comm'r of Labor & Indus., 662 A.2d 256, 258 (Md.1995); Powder River Basin Res. Council v. Wyo. Dep't of Envtl.Quality, 2010 WY 25, [paragraph] 7, 226 P.3d 809, 813 (Wyo. 2010).

(30.) See FAIC Sec. Inc. v. United States, 768 F.2d 352, 363 (D.C.Cir. 1985) (citing statements entered in the Congressional Record todetermine that the National Housing Act should be read in pari materiawith the Federal Deposit Insurance Act).

(31.) Nelson, supra note 25, at 487.

(32.) See, e.g., Alvord-Polk, Inc. v. F. Schumacher & Co., 37F.3d 996, 1014 (3d Cir. 1994) (noting that the plaintiffs'Pennsylvania-law antitrust claim "rises or falls withplaintiffs' federal antitrust claims"); Metro-Goldwyn-MayerStudios Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213, 1223-24 (C.D. Cal.2003) (finding that construction of federal antitrust law should guideconstruction of state antitrust law because the state law "hasobjectives identical to the federal antitrust acts" (quoting Vinciv. Waste Mgmt., Inc., 36 Cal. App. 4th 1811, 1814 n.i (Ct. App. 1995)));Stolow v. Greg Manning Auctions Inc., 258 F. Supp. 2d 236, 244 11.8(S.D.N.Y. 2003); Verizon N.J., Inc. v. Ntegrity Telecontent Servs.,Inc., 219 F. Supp. 2d 616, 632 (D.N.J. 2002); La. Power & Light Co.v. United Gas Pipe Line Co., 493 So. 2d 1149, 1158 (La. 1986)("Because La. Rev. Stat. Ann. [section] 51:122 is a counterpart to[section] 1 of the Sherman Antitrust Act, the United States SupremeCourt's interpretation of the Sherman Act should be a persuasiveinfluence on the interpretation of our own state enactment.");Beville v. Curry, 2001 OK 1, [paragraph] 11, 39 P.3d 754, 759; H.J.Baker & Bros., Inc. v. Orgonics, Inc., 554 A.2d 196, 204 (R.I.1989); Hovenkamp, supra note 26, at 377 n.10 ("[S]tate antitrustlaws are substantively similar to federal antitrust law, and many statecourts have held that case law interpreting the federal statutes isfully applicable to corresponding state statutes.").

(33.) See, e.g., Field v. Mans, 516 U.S. 59, 72. n.10, 73-74, 73nn.11-12 (1995) (consulting statecourt definitions to determine thelevel of reliance required to constitute "actual fraud" undera provision of the federal Bankruptcy Code); Evans v. United States, 504U.S. 255, 269 (1992) (consulting state-court definitions of"extortion" to clarify the meaning of "extortion" inthe Hobbs Act).

(34.) See, e.g., Associated Gen. Contractors of Cal. Inc. v. Cal.State Council of Carpenters, 459 U.S. 519, 531 (1983); Nat'lSoc'y of Prof 1 Eng'rs v. United States, 435 U.S. 679, 688& n.u (1978).

(35.) See, e.g., Wayne D. Collins, Trusts and the Origins ofAntitrust Legislation, 81 Fordham L. Rev. 2279, 2340 (2013) (noting that"backers of the Sherman Act assured the floor of the Senate thatthey were merely seeking to enable federal courts to apply the commonlaw to anticompetitive business activities and early federal cases arefull of citations to English and state common law"); William L.Letwin, Congress and the Sherman Antitrust Law: 1887-1890, 23 U. Chi. L.Rev. 221, 252-53 (1956) (noting Senator Sherman's argument that theSherman Act was meant to prohibit "all those [combinations] whichthe common law had always condemned as unlawful" and recallingSherman's reading of the Richardson v. Buhl decision on the floorof the Senate).

(36.) 43 N.W. 1102 (Mich. 1889); see also N. Sec. Co. v. UnitedStates, 193 U.S. 197, 341 (1904) (citing Richardson, among otherstate-court decisions); United States v. Addyston Pipe & Steel Co.,85 F. 271, 291 (6th Cir. 1898) (same), aff'd, 175 U.S. 211 (1899).

(37.) 21 Cong. Rec. 2456 (1890) (statement of Sen. Sherman).

(38.) See, e.g., N. Sec. Co., 193 U.S. at 339 ("[W]henCongress declared contracts, combinations and conspiracies in restraintof trade or commerce to be illegal, it did nothing more than apply tointerstate commerce a rule that had been long applied by the severalStates when dealing with combinations that were in restraint of theirdomestic commerce.").

(39.) See, e.g., id. at 339-41.

(40.) See infra notes 113,116,120-125 and accompanying text.

(41.) See Idaho Const, art. XI, [section] 18 (1889); Mont. Const,art. XV, [section] 20 (1889); N.D. Const. art. VII, [section] 146(1889); Wash. Const, art. XII, [section] 22 (1889); Wyo. Const, art. X,[section] 8 (1889); Act of Apr. 16, 1888, ch. 84, 1888 Iowa Acts 124;Act of Mar. 2, 1889, ch. 257,1889 Kan. Sess. Laws 389; Act of May 20,1890, ch. 1621, 1889 Ky. Acts 143; Act of Mar. 7, 1889, ch. 266, 1889Me. Laws 235; Act of July 1, 1889, No. 225, 1889 Mich. Pub. Acts 331;Act of Feb. 22, 1890, ch. 36, 1890 Miss. Laws 55; Act of May 18, 1889,1889 Mo. Laws 96; Act of Mar. 29, 1889, ch. 69, 1889 Neb. Laws 516; Actof Mar. 11, 1889, ch. 374, 1889 N.C. Sess. Laws 372; Act of Mar. 3,1890, ch. 174, 1890 N.D. Laws 503; Act of Mar. 7, 1890, ch. 154, 1890S.D. Sess. Laws 323; Act of Apr. 4, 1889, ch. 250, 1889 Tenn. Pub. Acts475; Act of Mar. 30, 1889, ch. 117,1889 Tex. Gen. Laws 141.

(42.) See Letwin, supra note 35, at 234; see also Collins, supranote 35, at 2315-28.

(43.) Letwin, supra note 35, at 224.

(44.) Will Wilson, The State Antitrust Laws, 47 A.B.A. J. 160, 160(1961).

(45.) Letwin, supra note 35, at 222.

(46.) See David Millon, The First Antitrust Statute, 29 WashburnL.J. 141, 148 (1990) ("Most antitrust activity began not at thenational level, but rather at the state and local level." (quotingSteven L. Piott, The Anti-Monopoly Persuasion: Popular Resistance to theRise of Big Business in the Midwest 4 (1985))).

(47.) Act of Apr. 16,1888, ch. 84, 1888 Iowa Acts 124.

(48.) See Hans B. Thorelli, The Federal Antitrust Policy:Orgination of an American Tradition 150-51 (1955).

(49.) Id. at 151 (quoting Thomas H. McKee, The National Conventionsand Platforms of All Political Parties, 1789 to 1905, at 241 (1906)).

(50.) See William T. Horner, Ohio's Kingmaker: Mark Hanna, Manand Myth 73 (2010); William Kolasky, Senator John Sherman and the Originof Antitrust, Antitrust, Fall 2009, at 85, 86.

(51.) See S. Doc. No. 97-5, at 43 (1981).

(52.) 19 Cong. Rec. 6041 (1888).

(53.) S. 3440, 50th Cong. [section] 1 (1888).

(54.) See id. [section] [section]2-3.

(55.) 19 Cong. Rec. 7513 (1888).

(56.) S. 3445, 50th Cong, (as introduced by Senator Sherman, Aug.14, 1888).

(57.) Id.

(58.) Thorelli, supra note 48, at 170.

(59.) S. 3445 (as reported by S. Comm, on Fin., Sept. 11,1888).

(60.) Thorelli, supra note 48, at 171-73.

(61.) Act of Mar. 2, 1889, ch. 257, 1889 Kan. Sess. Laws 389; Actof Mar. 7, 1889, ch. 266, 1889 Me. Laws 235; Act of July 1, 1889, No.225, 1889 Mich. Pub. Acts 331; Act of May 18, 1889, 1889 Mo. Laws 96;Act of Mar. 29, 1889, ch. 69, 1889 Neb. Laws 516; Act of Mar. 11, 1889,ch. 374, 1889 N.C. Sess. Laws 372; Act of Apr. 4, 1889, ch. 250, 1889Tenn. Pub. Acts 475; Act of Mar. 30,1889, ch. 117,1889 Tex. Gen. Laws141.

(62.) See Idaho Const, art. XI, [section] 18 (1889); Mont. Const,art. XV, [section] 20 (1889); N.D. Const. art. VII, [section] 146(1889); Wash. Const, art. XII, [section] 22 (1889); Wyo. Const, art. X,[section] 8 (1889). South Dakota adopted a state constitutionalantitrust provision in 1896. See S.D. Const, art. XVII, [section] 20.

(63.) [section] 1,1889 Kan. Sess. Laws at 389.

(64.) [section] 1,1889 Tex. Gen. Laws at 141.

(65.) Id. The Texas statute was principally drafted bythen-Attorney General James Hogg, who used Reagan's bill as amodel. Robert C. Cotner, James Stephen Hogg: A Biography 163-64 (1959)(citing TomFinty, Jr., Anti-Trust Legislation in Texas 16 (1916)).

(66.) See U.S. Const, art. I, [section] 3, cl. 1, amended by U.S.CONST, amend. XVII.

(67.) See S. 62, 51st Cong, (as introduced by Senator Reagan, Dec.4, 1889); Cotner, supra note 65, at 166.

(68.) See infra Parts II.A, II.B.

(69.) See infra Part II.C.

(70.) See Act of Mar. 2, 1889, ch. 257, [section] 1, 1889 Kan.Sess. Laws 389, 389; Act of May 18, 1889, [section] 1, 1889 Mo. Laws 96,96; Act of Mar. 29,1889, ch. 69, [section] 1,1889 Neb. Laws 516, 516-17.

(71.) See [section] 2, 1889 Kan. Sess. Laws at 389; [section] 2,1889 Mo. Laws at 96-97; [section] 2, 1889 Neb. Laws at 517-18.

(72.) See Act of July 1, 1889, No. 225, [section] 6, 1889 Mich.Pub. Acts 331, 333 (including an exception for laborers and agriculturalproducers); Act of Mar. 30, 1889, ch. 117, [section] 13, 1889 Tex. Gen.Laws 141,142 (including an exception for agricultural producers).

(73.) Compare S. 1, 51st Cong, (as introduced by Senator Sherman,Dec. 4, 1889), with S. 3445, 50th Cong, (as amended and printed, Jan.25,1889).

(74.) See S. 62, 51st Cong. [section] 2 (as introduced by SenatorReagan, Dec. 4, 1889). Reagan's amended bill departed from thepolicy of the Texas statute in one crucial respect: unlike the statestatute, it did not include an agricultural exception. Id.

(75.) S. 6, 51st Cong. [section] 1 (as introduced by SenatorGeorge, Dec. 4,1889).

(76.) S. 1 [section] 1 (as reported by Senator Sherman, Jan. 14,1890).

(77.) 21 Cong. Rec. 1767 (1890).

(78.) S. 1 [section] 1 (as proposed by Senator Sherman, Mar. 18,1890) (emphasis added).

(79.) 21 CONG. Rec. 2461 (1890) (statement of Sen. Sherman). Notethat under Sherman's March amendment, illegal combinations weresubject only to civil, and not criminal, liability; this seems to havebeen a factor in Sherman's replacement of the mens rea provisionwith a strict-liability regime. See id.

(80.) Congress's consideration of a mens rea requirement inSherman's amended bill does not indicate any particular legislativeintent with respect to mens rea. As noted below, the final bill issuedby the Judiciary Committee, and largely written by Senator GeorgeEdmunds, Republican of Vermont, bore only a rough resemblance to theearlier bills floated by Senator Reagan and Senator Sherman. SenatorEdmunds's bill, with its famously broad language, was intendedmainly to give the federal government the power to prosecute interstatemonopolies to the same extent that state governments prosecutedintrastate monopolies. See, e.g., H.R. Rep. No. 51-1707, at 1 (1890);see also infra Section I.B. The best reference point for whether or notthe Sherman Act carried a mens rea requirement, therefore, may be thevarious items of state legislation, which constituted the broaderantitrust scheme that the Sherman Act was meant to supplement.

(81.) See 21 CONG. Rec. 2611 (1890) (adopting Reagan'samendment by a roll call vote of thirtyfour to twelve).

(82.) See 21 Cong. Rec. 2612 (1890) (adopting the agricultural andlabor proviso by a voice vote). 85.

(83.) See Act of Feb. 22,1890, ch. 36,1890 Miss. Laws 55.

(84.) Act of Mar. 7,1890, ch. 154, [section] 1,1890 S.D. Sess. Laws323, 323.

(85.) See Act of Mar. 3, 1890, ch. 174, 1890 N.D. Laws 503(prohibiting combinations with reference to certain price and supplyeffects without mentioning "competition" as such).

(86.) See id. [section][section]1-2.

(87.) See 21 Cong. Rec. 2731 (1890).

(88.) See S. 1, 51st Cong, (as reported by S. Comm, on theJudiciary, Apr. 2,1890).

(89.) See 21 Cong. Rec. 2613 (1890).

(90.) See S. 1 [section] 1 (prohibiting contracts "inrestraint of trade or commerce among the several States"); id.[section] 2 (prohibiting efforts to monopolize "any part of thetrade or commerce among the several States").

(91.) See id. [section][section] 1, 2, 7.

(92.) Id. [section] 1.

(93.) Id. [section] 2.

(94.) See S. 1.

(95.) Act of May 18, 1889, [section]1, 1889 Mo. Laws 96, 96; Act ofMar. 3, 1890, ch. 174, [section] 1, 1890 N.D. Laws 503, 503-04.

(96.) N.D. Const, art. VII, [section] 146 (1889).

(97.) Thorelli, supra note 48, at 207.

(98.) Act of May 20, 1890, ch. 1621, 1889 Ky. Acts 143.

(99.) [section] 1, 1889 Ky. Acts at 143.

(100.) See THORELLI, supra note 48, at 210.

(101.) See Act of July 5, 1890, No. 86, [section] 1, 1890 La. Acts90, 91 ("[E]very contract, combination in the form of trust, orconspiracy, in restraint of trade or commerce or to fix or limit theamount or quantity of any article, commodity or merchandise to bemanufactured, mined, produced or sold in this State is hereby declaredillegal.").

(102.) The states, however, continued to enact their own antitrustlegislation. By 1932, only seven states were without their own antitrustlaws. See Legislation: A Collection and Survey of State Antitrust Laws,32 Colum. L. Rev. 347, 347 (1932).

(103.) See 21 Cong. Rec. 3133, 3145-53 (1890); cf. Thorelli, supranote 48, at 170 ("Little intellectual effort is required toascertain the fact that the philosophy underlying the substantiveclauses of the Sherman and Reagan bills was virtually identical.").

(104.) 21 Cong. Rec. 3133,3146-51 (1890).

(105.) Scholars have long taken note of this aspect of the ShermanAct. See Hovenkamp, supra note 26, at 375 ("The legislative historyof the federal antitrust law indicates that Congress intended to leavestate antitrust enforcement more or less intact but to provide anadditional federal forum for dealing with restraints of trade whichexceeded the jurisdiction of the courts of any particular state.");James May, Antitrust Practice and Procedure in the Formative Era: TheConstitutional and Conceptual Reach of State Antitrust Law, 1880-1918,135 U. PA. L. Rev. 495, 503-04 (1987); Note, The Commerce Clause andState Antitrust Regulation, 61 COLUM. L. Rjev. 1469, 1473-74 (1961).

(106.) See U.S. Const, art. I, [section] 8, cl. 3; S. 3440, 50thCong. [section] 2 (as introduced by Senator Reagan, Aug. 14, 1888)(prohibiting the activities of any trust "in any trade or businesscarried on with foreign countries, or between the States").

(107.) See U.S. CONST, art. I, [section] 8, cl. 1; S. 6, 51st Cong.[section] 3 (as introduced by Senator George, Dec. 4, 1889) (permittingthe suspension of "duties or import taxes" on articles ofcommerce controlled by trusts).

(108.) See U.S. Const, art. Ill, [section] 2; 21 CONG. Rec. 2460-61(1890) (statement of Sen. Sherman); S. 6 [section] 2 (as introduced bySenator George, Dec. 4, 1889) (restricting federal jurisdiction withregard to suits brought to enforce illegal combinations in restraint oftrade).

(109.) See S. 3440 [section] 2 (as introduced by Senator Reagan,Aug. 14, 1888).

(110.) See 21 CONG. Rec. 2465 (1890) (statement of Sen. Vest); 21CONG. Rec. 1768-72 (1890) (statement of Sen. George).

(111.) See S. 6 [section] 3 (as introduced by Senator George, Dec.4, 1889); Richard C. Edwards, Economic Sophistication in NineteenthCentury Congressional Tariff Debates, 30 J. ECON. Hist. 802, 821-22(1970).

(112.) See, e.g., 21 Cong. Rec. 2460-68, 2470-73 (1890); 20 CONG.Rec. 1458-1462 (1889); see also Thorelli, supra note 48, at 170-99.

(113.) 21 CONG. Rec. 2457 (1890) (statement of Sen. Sherman)(emphasis added).

(114.) See Andrew I. Gavil, Reconstructing the JurisdictionalFoundation of Antitrust Federalism, 61 Geo. Wash. L. Rev. 657,678-83(1993)

(115.) 95 U.S. 714 (1878); see Hovenkamp, supra note 26, at 379-82.

(116.) 21 Cong. Rec. 2456 (1890) (statement of Sen. Sherman).

(117.) Id. at 2457.

(118.) Id. at 1456.

(119.) See 21 Cong. Rec. 2464-65 (1890) (statement of Sen. Vest).

(120.) Id. at 2465.

(121.) 21 Cong. Rec. 2469 (1890) (statement of Sen. Reagan); seealso 21 CONG. Rec. 2601 (1890) (statement of Sen. Reagan) (explainingthat when Congress had "exhausted [its] power under the commerceclause ... then the people must rely upon the Legislatures of theseveral States for the rest of the legislation on [trusts andcombinations]").

(122.) H.R. Rep. No. 51-1707, at 1 (1890).

(123.) 21 Cong. Rec. 2457 (1890) (statement of Sen. Sherman).

(124.) See Nelson, supra note 25, at 487 ("[W]hen courtsconclude that two statutes are part of an integrated scheme, courts willresist reading those statutes to work at cross-purposes.... [C]ourtsoften try to resolve indeterminacies in one statute in a way that keepsthe statute in tune with the policies behind other statutes that are inpari materia.").

(125.) 15 U.S.C. [section] 1 (2012).

(126.) Note that, despite the fifty-state image displayed above, atthe time of the Sherman Act's adoption on July 2, 1890, Alaska,Arizona, Hawaii, Idaho, New Mexico, Oklahoma, Utah, and Wyoming had notyet been admitted to the Union as states. Idaho and Wyoming, each ofwhich was admitted shortly after the passage of the Sherman Act,approved antitrust provisions in their state constitutional conventionsprior to their admission as states and prior to the adoption of theSherman Act. See IDAHO CONST. art. XI, [section] 18 (1889); Wyo. Const.art. X, [section] 8 (1889).

(127.) See, e.g., Cotner, supra note 65, at 160-61; THORELLI, supranote 48, at 58-62, 143-44; Frank H. Easterbrook, Commentary, Antitrust1889, 29 Washburn L.J. 150, 153-54 (1990); Letwin, supra note 35, at232-33; Millon, supra note 46, at 141.

(128.) Millon, supra note 46, at 149; see, e.g., Easterbrook, supranote 127, at 152 (noting that a "booming economy" at the timeof the state statutes' adoption leads Easterbrook to "doubtsome of Professor Millon's explanation" that aggregation ofeconomic power "threatened American ideals" and led to therise of state antitrust statutes); Millon, supra note 46, at 143(appealing to a spirit of egalitarianism rooted in the tradition of"Thomas Jefferson's idealistic vision of a nation ofindependent property owners of roughly equal economic stature").

(129.) Millon, supra note 46, at 149; see also Easterbrook, supranote 127, at 153 (hypothesizing that state antitrust laws were designedto "allocate [railroad] gains to the farmers" and "tur[n]the screws on the railroads"). But see George J. Stigler, TheOrigin of the Sherman Act, 14 J. Legal Stud. 1, 1-3 (1985).

(130.) See generally Barak Y. Orbach, The Antitrust ConsumerWelfare Paradox, 7 J. COMPETITION L. & ECON. 133 (2011) (arguingthat use of the term "consumer welfare" has obscured thedistinctions between more nuanced antitrust enforcement goals, includingconsumer surplus and total welfare).

(131.) Herbert Hovenkamp, Implementing Antitrust's WelfareGoals, 81 Fordham L. Rev. 2471, 2477 (2013); see also Phillip Areeda,Introduction to Antitrust Economics, 52 Antitrust L.J. 523, 535 (1983)("Some argue that output volume is the exclusive measure ofconsumer welfare. As a first and generally decisive test, it is indeedoften useful to ask whether a challenged arrangement reducesoutput.").

(132.) Hovenkamp, supra note 131, at 2477.

(133.) Nicolas Petit, A Proposed Interpretation of the ECJ Rulingin GSK (C-468/06 to C-478/06) --and GCLC Slides, Antitrust Hotch Potch(Dec. 21, 2008, 4:01 PM), http://professorgeradin.blogs.com/professor_geradins_weblog/2008/12/ecj-sot-lelos-kai-sia-ee-et -al-v-glaxosmithkline-aeve-c46806-to-c47806-gsk-and-gclc-slides.html [http://perma.cc /7THJ-59X6].

(134.) Act of May 18, 1889, 1889 Mo. Laws 96.

(135.) The core language of Missouri's antitrust statute wasalso used in the statutes crafted by legislatures in Kentucky and NorthDakota. See Act of May 20, 1890, ch. 1621, 1889 Ky. Acts 143; Act ofMar. 3, 1890, ch. 174, 1890 N.D. Laws 503. State constitutionalconventions in Idaho, Montana, North Dakota, and Washington relied onsimilar language for their respective state constitutions. See IDAHOCONST. art. XI, [section] 18 (1889); MONT. CONST. art. XV, [section] 20(1889); N.D. Const. art. VII, [section] 146 (1889); Wash. Const. art.12, [section] 22 (1889). It was also closely echoed in nearly everyother state enactment, as discussed below.

(136.) [section][section] 1-2, 1889 Mo. Laws at 96-97.

(137.) Compare [section] 2, 1889 Mo. Laws at 96-97, with 15 U.S.C.[section] 2 (2012).

(138.) See Monopoly, Black's Law Dictionary (10th ed. 2014)("A monopoly is created when, as the result of efforts to that end,previously competing businesses are so concentrated in the hands of asingle person or corporation, or a few persons or corporations actingtogether, that they have power, for all practical purposes, to controlthe prices of a commodity...."

(quoting 54A Am. Jur. 2D Monopolies, Restraints of Trade, andUnfair Trade Practices [section] 781 (1996))).

(139.) See Webster's International Dictionary 1547 (1891)(defining a "trust" as an "organization formed mainly forthe purpose of regulating the supply and price of commodities, etc.; as,a sugar trust").

(140.) [section] 2, 1889 Mo. Laws at 96, 97 (emphasis added).

(141.) See sources cited supra note 41.

(142.) Act of Mar. 11, 1889, ch. 374, [section] 2, 1889 N.C. Sess.Laws 372, 372-73 (emphasis added). The North Carolina statute alsoprohibited arrangements "reducing" prices, but this was not aprohibition on productive efficiencies that reduced prices by changingthe supply curve; it was a prohibition on anticompetitive productdumping, as the statute went on to explain: "[A]ny merchant,broker, manufacturer or dealers in raw materials of any kind, or theagent of such persons, who shall sell any particular class of goods, rawmaterials or manufactured articles for less than [the] actual cost forthe purpose of breaking down competitors, shall be guilty of amisdemeanor...." [section] 5, 1889 N.C. Sess. Laws at 373 (emphasisadded).

(143.) Scott C. James, Prelude to Progressivism: Party Decay,Populism, and the Doctrine of "Free and UnrestrictedCompetition" in American Antitrust Policy, 1890-1897, 13 Stud. Am.Pol. Dev. 288, 303 (1999).

(144.) These explicitly anti-trust constitutional provisions shouldnot be confused with older state constitutional provisions, precedingthe advent of industrial trusts, that prohibited "monopolies"in the older sense, meaning publicly granted charters of exclusivedealing. See, e.g., Md. Const. art. XXXIX (1776) ("[Monopolies areodious, contrary to the spirit of a free government and the principlesof commerce, and ought not to be suffered.").

(145.) Idaho Const. art. XI, [section] 18 (1889); Mont. Const. art.XV, [section] 20 (1889); N.D. Const. art. VII, [section] 146 (1889);Wash. Const. art. XII, [section] 22 (1889). Wyoming opted for awider-scoped antitrust provision prohibiting combinations "toprevent competition, to control or influence productions or pricesthereof, or in any manner to interfere with the public good and generalwelfare." Wyo. Const. art. X, [section] 8 (1889).

(146.) Mont. Const. art. XV, [section] 20 (1889).

(147.) Act of Mar. 29, 1889, ch. 69, [section] 1, 1889 Neb. Laws516, 516-17.

(148.) [section] 2, 1889 Neb. Laws at 517-18; see also Act of Mar.7, 1889, ch. 266, [section] 1, 1889 Me. Laws 235, 235 (prohibiting theorganization of "any trust," but leaving the term undefined).

(149.) Webster's International Dictionary, supra note 139, at1547.

(150.) Act of May 18, 1889, 1889 Mo. Laws 96.

(151.) Act of Apr. 16, 1888, ch. 84, [section] 1, 1888 Iowa Acts124, 124 (prohibiting any agreement "to regulate or fix the priceof ... [any] commodity or article ... or limit the amount or quantity ofany commodity or article to be manufactured, mined, produced, or sold inthis State").

(152.) Act of July 1, 1889, No. 225, [section] 1, 1889 Mich. Pub.Acts 331, 332.

(153.) Id.

(154.) Yates v. United States, 135 S. Ct. 1074, 1086 (2015)(alteration in original) (quoting Wash. State Dep't of Soc. &Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384(2003)).

(155.) See Act of Apr. 4, 1889, ch. 250, [section] 1, 1889 Tenn.Pub. Acts 475, 475 (prohibiting "any trust ... to limit the supplyor production of said articles ... or to create a monopoly or corner inthe same" while also broadly condemning the formation of a trust toproduce articles "for the purpose of injuriously affecting ...legitimate trade and commerce").

(156.) See Act of Mar. 7, 1890, ch. 154, [section][section] 1-2,1890 S.D. Sess. Laws 323, 323-24 (condemning any combination "thattends to advance the price to the user or consumer of any article orcommodity ... beyond the reasonable cost of production ormanufacture" or any combination tending "to prevent a free,fair and full competition").

(157.) Wyo. Const. art. X, [section] 8 (1889).

(158.) See Act of Mar. 2, 1889, ch. 257, [section] 2, 1889 Kan.Sess. Laws 389, 389.

(159.) [section] 1, 1889 Kan. Sess. Laws at 389 (emphasis added).

(160.) See Act of Feb. 22, 1890, ch. 36, [section] 1, 1890 Miss.Laws 55, 55-56.

(161.) Act of Mar. 30, 1889, ch. 117, [section] 1, 1889 Tex. Gen.Laws 141, 141 (emphasis added).

(162.) Joseph A. Pratt & Mark E. Steiner, "An Intent toTerrify": State Antitrust in the Formative Years of the Modern OilIndustry, 29 Washburn L.J. 270, 275 (1990) (quoting 2 Clarence Wharton,Texas Under Many Flags 418 (1930)).

(163.) Idaho Const. art. XI, [section] 18 (1889); Mont. Const. art.XV, [section] 20 (1889); N.D. Const. art. VII, [section] 146 (1889);Wash. Const. art. XII, [section] 22 (1889); Wyo. Const. art. X,[section] 8 (1889); Act of May 20, 1890, ch. 1621, 1889 Ky. Acts 143;Act of July 1, 1889, No. 225, 1889 Mich. Pub. Acts 331; Act of May 18,1889, 1889 Mo. Laws 96; Act of Mar. 3, 1890, ch. 174, 1890 N.D. Laws503; Act of Mar. 7, 1890, ch. 154, 1890 S.D. Sess. Laws 323; Act of Apr.4, 1889, ch. 250, 1889 Tenn. Pub. Acts 475.

(164.) For a more detailed discussion of the difference betweenachieving allocative efficiency within a single market and maximizingoverall social output, see infra Part III.

(165.) See sources cited supra note 41.

(166.) N.D. Const. art. VII, [section] 146 (1889).

(167.) Act of Apr. 16, 1888, ch. 84, [section] 1, 1888 Iowa Acts124, 124.

(168.) Act of Mar. 7, 1890, ch. 154, [section] 1, 1890 S.D. Sess.Laws 323, 323-24.

(169.) Act of May 20, 1890, ch. 1621, [section] 1, 1889 Ky. Acts143, 143.

(170.) Act of July 1, 1889, No. 225, [section] 1, 1889 Mich. Pub.Acts 331, 332.

(171.) Act of Mar. 2, 1889, ch. 257, [section] 2, 1889 Kan. Sess,Laws 389, 389.

(172.) [section] 1, 1889 Mich. Pub. Acts at 332.

(173.) See Act of Feb. 22, 1890, ch. 36, [section] 1, 1890 Miss.Laws 55, 55-56; Act of Mar. 30, 1889, ch. 117, [section] 1, 1889 Tex.Gen. Laws 141, 141.

(174.) See sources cited supra note 41.

(175.) Act of Mar. 11, 1889, ch. 374, [section] 2, 1889 N.C. Sess.Laws 372, 372-73.

(176.) [section] 1, 1889 Mich. Pub. Acts at 332.

(177.) Act of Apr. 4, 1889, ch. 250, [section] 1, 1889 Tenn. Pub.Acts 475, 475.

(178.) Act of Mar. 2, 1889, ch. 257, [section] 1, 1889 Kan. Sess.Laws 389, 389 (emphasis added).

(179.) Id.

(180.) See Act of May 20, 1890, ch. 1621, 1889 Ky. Acts 143.

(181.) N.D. CONST. art. VII, [section] 146 (1889) (emphasis added).

(182.) Act of Mar. 3, 1890, ch. 174, [section] 1, 1890 N.D. Laws503, 503.

(183.) Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974, 974(1932) (quoting 1 Joel Prentiss Bishop, Commentaries on the Criminal Law[section] 287 (9th ed. 1930)).

(184.) See Staples v. United States, 511 U.S. 600, 605 (1994);Morissette v. United States, 342 U.S. 246, 250-56 (1952).

(185.) See Oliver E. Williamson, Economies as an Antitrust Defense:The Welfare Tradeoffs, 58 AM. Econ. Rev. 18, 21-23 (1968).

(186.) This graph is taken from Williamson. Id. at 21 fig.i.

(187.) Id. at 25, 34. Williamson's proposal has attractedadherents outside the academy. Canadian antitrust law, for instance,recognizes a productive-efficiency defense. See Michael J. Trebilco*ck& Edward M. Iacobucci, National Treatment and Extraterritoriality:Defining the Domains of Trade and Antitrust Policy, in Competition Lawsin Conflict: Antitrust Jurisdiction in the Global Economy 152, 167(Richard A. Epstein & Michael S. Greve eds., 2004).

(188.) See Alan J. Meese, Debunking the Purchaser Welfare Accountof Section 2 of the Sherman Act: How Harvard Brought Us a Total WelfareStandard and Why We Should Keep It, 85 N.Y.U. L. REV. 659, 668-69(2010).

(189.) Id.

(190.) See supra Section II.B.

(191.) 442U.S. 330, 343(1979).

(192.) Robert Pitofsky, Efficiency Consideration and MergerEnforcement: Comparison of U.S. and EU Approaches, 30 FORDHAM Int'lL.J. 1413, 1418 (2006). Although the consideration of productiveefficiencies has gained increasing acceptance among antitrust regulatorsat the Justice Department and the Federal Trade Commission, see WilliamJ. Kolasky & Andrew R. Dick, The Merger Guidelines and theIntegration of Efficiencies into Antitrust Review of Horizontal Mergers,71 Antitrust L.J. 207, 213-31 (2003), productive efficiencies weigh infavor of a merger only where the cost savings are likely to be passed onto consumers in the relevant market, see U.S. Dep't of Justice& Fed. Trade Comm'n, Horizontal Merger Guidelines 31 (2010).

(193.) 605 F. Supp. 2d 26 (D.D.C. 2009).

(194.) Id. at 74; accord Fed. Trade Comm'n v. H.J. Heinz Co.,246 F-3d 708, 720-21 (D.C. Cir. 2001); Fed. Trade Comm'n v. TenetHealth Care Corp., 186 F.3d 1045, 1055 (8th Cir. 1999) (approvingproductive efficiencies where "evidence shows that the mergedentity may well enhance competition"); Fed. Trade Comm'n v.Univ. Health, Inc., 938 F.2d 1206, 1223 (nth Cir. 1991); Fed. TradeComm'n v. Swedish Match, 131 F. Supp. 2d 151, 171-72 (D.D.C. 2000).

(195.) See, e.g., Orbach, supra note 23.

(196.) Id. at 2276.

(197.) John B. Kirkwood, The Essence of Antitrust: ProtectingConsumers and Small Suppliers from Anticompetitive Conduct, 81 FordhamL. Rev. 2425, 2429 (2013) ("In a buy-side case, when suppliers arethe victims of anticompetitive conduct, the overarching goal isanalogous: to stop conduct that creates market power on the buying side,transfers wealth from suppliers to buyers, and does not providesuppliers with offsetting benefits.").

(198.) John B. Kirkwood & Robert H. Lande, The Fundamental Goalof Antitrust: Protecting Consumers, Not Increasing Efficiency, 84 NotreDame L. Rev. 191, 209 (2008).

(199.) Jill Priluck, The Antitrust Case Against Comcast-TimeWarner, Reuters (Feb. 20 2014),http://blogs.reuters.com/great-debate/2014/02/19/the-anti-trust-case-against-comcast-time -warner [http://perma.cc/KR8B-QPLM].

(200.) See Shalini Ramachandran, Comcast Kills Time Warner CableDeal, Watt. St. J. (Apr. 24, 2015),http://www.wsj.com/articles/comcast-kills-time-warner-cable-deal-1429878881 [http://perma.cc/4GPT-YFKQ] ("The agencies' biggestconcerns came down to how they could protect the nascent streaming TVindustry against the broadband colossus the deal would create, peoplefamiliar with the meetings between Comcast and the regulatorssaid.").

(201.) Antitrust scholars on different sides of the monopsony issueagree that monopsony sometimes affects output or consumer price but doesnot necessarily hurt consumers. See Roger D. Blair & Jeffrey L.Harrison, Antitrust Policy and Monopsony, 76 Cornell L. Rev. 297, 339(1991); Steven C. Salop, Anticompetitive Overbuying by Power Buyers, 72Antitrust L.J. 669, 671 (2005).

(202.) Cf. Mont. Const, art. XV, [section] 20 (1889) ("Noincorporation ... shall directly, or indirectly, combine or form what isknown as a trust ... for the purpose of fixing the price, or regulatingthe production of any article of commerce ... for consumption by thepeople."); Act of Mar. 7, 1889, ch. 266, [section] 1, 1889 Me. Laws235, 235 ("It shall be unlawful for any firm ... organized for thepurpose of manufacturing ... any article or product which enters intogeneral use and consumption by the people, to form or organize anytrust.").

(203.) See supra Part II.C.

(204.) United States v. U.S. Gypsum Co., 438 U.S. 422, 435-36(1978).

(205.) See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS,Inc., 551 U.S. 877 (2007) (holding that vertical price restraints aresubject to a rule-of-reason standard); State Oil Co. v. Khan, 522 U.S. 3(1997) (applying the rule of reason to vertical maximum price fixing);Cont'l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)(applying the rule of reason to location-of-sale restrictions).

(206.) Khan, 522 U.S. at 16 (quoting Khan v. State Oil Co., 93 F.3d1358,1362 (7th Cir. 1996)).

(207.) United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223(1940) (emphasis added).

(208.) Bd. of Trade of Chi. v. United States, 246 U.S. 231, 238(1918).

(209.) See generally Sandeep Vaheesan, The Evolving Populisms ofAntitrust, 93 Neb. L. Rev. 370 (2014).

Yale Law School, J.D. 2015. I am especially grateful for thedirection and advice I received on this project from Professor GeorgePriest. Professors Herbert Hovenkamp and Dale Collins provided valuablefeedback on the first drafts. Jennifer Yun, Rebecca Lee, MichaelClemente, and the editors of the Yale Law Journal strengthened this Notethrough their thoughtful questions and suggestions. Any errors are mine.

Table 1.REFERENCE TO PRICE AND OUTPUT RESTRAINTS (141)Prohibits Only Combinations To Prohibits Combinations To FixFix Prices and Output Prices and Output, and Includes Other LanguageIowa statute Kansas statute (section 1 cartel prohibition)Kansas statute Michigan statute(Section 2 trust prohibition)Kentucky statute Mississippi statuteMaine statute South Dakota statuteMissouri statute Tennessee statuteNebraska statute Texas statuteNorth Carolina statute Wyoming constitutional provisionNorth Dakota statuteIdaho constitutional provisionMontana constitutional provisionNorth Dakotaconstitutional provisionWashingtonconstitutional provisionTable 2.REFERENCE TO EFFECTS ON PARTICULAR ARTICLES OF COMMERCE (165)Statute or Provision Only Language Sweeps Broadly To ProhibitProhibits Behavior Affecting the "Restrictions in Trade" orTrade of Particular Articles of Interference with "the Public Good"CommerceIowa statute Mississippi statuteKansas statute Texas statuteKentucky statute Wyoming constitutional provisionMaine statuteNorth Carolina statuteNebraska statuteTennessee statuteMissouri statuteMichigan statuteNorth Dakota statuteSouth Dakota statuteIdaho constitutional provisionMontana constitutional provisionWashington constitutional provisionNorth Dakota constitutional provisionTable 3.MENS REA STANDARDS (174)Statute or Provision Requires anIllegal Intent or Purpose Negligence Liability StandardIowa statute Kansas statute (section 1 cartel ban)Kansas statute (section 2 Kentucky statute (section 2trust ban) trust ban)Kentucky statute (section 1 Mississippi statutecartel ban)Maine statute Texas statuteMichigan statute North Dakota constitutional provisionMissouri statute Wyoming constitutional provisionNebraska statuteNorth Carolina statuteNorth Dakota statuteSouth Dakota statuteTennessee statuteIdaho constitutional provisionMontana constitutional provisionWashington constitutionalprovision