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California Fair Trade: Antitrust and the Politics of “Fairness” in U.S. Competition Policy

  • Laura Phillips Sawyer

Abstract

In the decades before World War II, U.S. antitrust law was anything but settled. Considerable pressure for antitrust revision came from the states. A perhaps unlikely leader, Edna Gleason, organized California's retail pharmacists and coordinated trade networks to monitor and enforce Resale Price Maintenance (RPM) contracts, a system of price-fixing, then known as “fair trade.” Progressive jurists, including Louis Brandeis and institutional economist E. R. A. Seligman, supported RPM as a protection to independent proprietors. The breakdown of legal and economic consensus regarding what constituted “unfair competition” allowed businesspeople to act as intermediaries between heterodox economic thought and contested antitrust law, ultimately tailoring federal policy to accommodate state regulations.

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References

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1 Tony Freyer, Antitrust and Global Capitalism, 1930–2004 (Cambridge, U.K., 2006); William Kovacic, “Competition Policy in the European Union and the United States: Convergence or Divergence?” in Competition Policy in the EU: Fifty Years On from the Treaty of Rome, ed. Xavier Vives (Oxford, 2009), 314–43; Kovacic, William, “The Modern Evolution of U.S. Competition Policy Norms,” Antitrust Law Journal 71 (Jan. 2003): 377478.

2 Sherman Antitrust Act of 1890, 26 Stat. 209.

3 William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (Chicago, 1965), 3; Hans Thorelli, Federal Antitrust Policy: Origination of an American Tradition (Baltimore, 1956), 609.

4 On the conventional narratives of antitrust law that emphasize law and policy being “settled” in the 1910s, see Martin Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (Cambridge, U.K., 1988). Sklar interprets the law as favoring big business to the detriment of other democratic goals. See also Robert Bork, The Antitrust Paradox: A Policy at War with Itself (New York, 1978). Bork argues that the law is necessarily consumer oriented, favoring efficiency and low prices, regardless of structural implications for the economy.

5 Edward J. Balleisen, “The Prospects for Effective Coregulation in the United States: A Historian's View from the Early Twenty-First Century,” in Government and Markets: Toward a New Theory of Regulation, ed. Edward J. Balleisen and David A. Moss (Cambridge, Mass., 2010), 443–81; John, Richard, “Robber Barons Redux: Antimonopoly Reconsidered,” Enterprise & Society 13, no. 1 (2012): 138; Novak, William, “Law and the Social Control of American Capitalism,” Emory Law Journal 60 no. 2 (2010): 377405; William Novak, “The Public Utility Idea and the Origins of Modern Business Regulation,” in The Corporation and American Democracy (Cambridge, U.K., forthcoming); Radford, Gail, “From Municipal Socialism to Public Authorities: Institutional Factors in the Shaping of American Public Enterprise,” Journal of American History 90 (Dec. 2003): 863–90. See also Lipartito, Kenneth, “The Antimonopoly Tradition,” University of St. Thomas Law Journal 10 (Apr. 2014): 9911012; Schragger, Richard C., “The Anti-Chain Store Movement, Localist Ideology, and the Remnants of the Progressive Constitution, 1920–1940,” Iowa Law Review 90 (Mar. 2005): 101–84.

6 Louis Brandeis, “Shall We Abandon the Policy of Competition?” Case and Comment (Feb. 1912): 494, and “Cut-Throat Prices—Competition that Kills,” Harper's Weekly, 15 Nov. 1913, 573; To Prevent Discrimination in Prices and to Provide For Publicity of Prices to Dealers and The Public: Hearings on H.R. 13305, Before the House Comm. on Interstate and Foreign Commerce, 63rd Cong., 2nd sess. (1914–1915) (testimony of Louis Brandeis); Gerald Berk, Louis D. Brandeis and the Making of Regulated Competition, 1900–1932 (Cambridge, U.K., 2005). On “associationalism,” see Ellis Hawley, The New Deal and the Problem of Monopoly: A Study in Economic Ambivalence (Princeton, 1966).

7 The use of “fair trade” throughout the article refers specifically to how actors used it at the time, not a more generally applicable or timeless meaning.

8 See Duplex Printing Press Company v. Deering, 254 U.S. 443 (1921), Brandeis dissent.

9 Dr. Miles Medical Company v. Park & Sons, Inc., 220 U.S. 373 (1911). For the case overturning Dr. Miles as based on outdated economics, see Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007). See also Telser, Lester, “Why Should Manufacturers Want Fair Trade?Journal of Law and Economics 3 (Oct. 1960): 86106; Posner, Richard, “The Chicago School of Antitrust Analysis,” University of Pennsylvania Law Review 127, (Winter 1979): 925–48; Bork, Antitrust Paradox, 107–16; Kenneth Elzinga and David Mills, “Leegin and Procompetitive Resale Price Maintenance,” Antitrust Bulletin 55 (June 2010): 349–92; and Herbert Hovenkamp, “Leegin, the Role of Reason, and Vertical Agreement” (University of Iowa Legal Studies Research Paper No. 10–40, College of Law, University of Iowa, Iowa City, 2010). http://ssrn.com/abstract=1673519.

10 Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, Mass., 1984). “Brandeis offered regulatory solutions grounded on a set of economic assumptions that were fundamentally wrong” (p. 84).

11 See Sklar, Corporate Reconstruction, 106, 173.

12 Herbert Hovenkamp, Opening of American Law: Neoclassical Legal Thought, 1870–1970 (New York, 2014), 206–14.

13 Historical accounts of RPM have focused exclusively on national law and policy to the detriment both of local law and actors and of the contingency of economic thought. See, for example, Joseph Cornwall Palamountain, The Politics of Distribution (Cambridge, Mass., 1955); Thomas McCraw, K., “Competition and ‘Fair Trade’: History and Theory,” Research in Economic History 16, no. 1 (1996): 185239.

14 On President Roosevelt's reversal from cartelization policies to antitrust enforcement, see Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York, 1995). For example, U.S. v. Socony Vacuum Oil Co., 310 U.S. 150 (1940) reaffirmed the Court's hostility toward combinations affecting competitive prices; the Court struck down practices that had been sanctioned by the FTC less than a decade earlier.

15 “Gleason Taken by Death,” Stockton Record, 15 Mar. 1922, 3; Otis R. Tyson, “‘I Had to Have More Stores’ So Said Edna Gleason,” Pacific Drug Review [hereafter PDR], May 1931, n.p.; “Edna Gleason Seated by Council: Councilwoman Is Cut-Rate Foe,” Stockton Record, 23 Oct. 1951, 1. Unfortunately, Gleason did not leave personal papers, making it difficult to speculate on her motivations. Due to the length constraints of an article, the author has elected to reserve commentary on Gleason's gendered role in the fair trade movement for the book manuscript from which this article has been derived. Laura Phillips Sawyer, American Fair Trade: Proprietary Capitalism, Networks, and the “New Competition,” 1890–1940 (Cambridge, U.K., forthcoming).

16 John Moody, Moody's Analyses of Investments (New York, 1920), 4:123.

17 Tyson, “‘More Stores.’”

18 Matuszak, Alice Jean, “Edna Gleason: Dynamite from California,” Pharmacy in History 40, (Jan. 1998): 8592. The author interviewed Professor Matuszak, who had previously interviewed several people who worked with Gleason. They attested to Edna Gleason providing free health care advice and products to poor members of the community. Carmen Spradley, “The Gleason House: Serving the Medical Needs of the Homeless,” San Joaquin Magazine Health and Medical Guide 2011, 36–39, accessed 20 May 2011, http://issuu.com/sanjoaquinmagazine/docs/medguide_issuu_final.

19 Peter Temin, Taking Your Medicine: Drug Regulation in the United States (Cambridge, Mass., 1980), 60.

20 Ibid.

21 Nelson Lichtenstein, The Retail Revolution: How Wal-Mart Created a Brave New World of Business (New York, 2009), 18–22.

22 Alfred D. Chandler Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass., 1977).

23 Susan Strasser, Satisfaction Guaranteed: The Making of the American Mass Market (New York, 1989), 15–21.

24 U.S. Federal Trade Commission [hereafter, FTC], Chain Stores: Growth and Development of Chain Stores (Washington, D.C., 1932), ix–x. Over a forty-three-year period through 1928, the FTC estimated that approximately 51,565 new chain stores were opened and 6,475 stores were acquired by chains. Acquisitions rose in the period between 1928 and 1930, bringing the percentage to 15 percent of the total. On creating consumer demand, see Roland Marchand, Advertising the American Dream: Making Way for Modernity, 1920–1940 (Berkeley, 1985).

25 “Who's Your Competitor? What Is This New Type of Competition Commonly Called the ‘Pine-Board’ Store?” PDR, Apr. 1931, n.p.

26 “Below-cost pricing” refers to selling a good below its average variable cost, which may include the cost to purchase from a manufacturer or wholesaler as well as labor costs. If done in an effort to drive competitors out of business, this is referred to as “predatory pricing.” See Areeda, Philip and Turner, Donald F., “Predatory Pricing and Related Practices under Section 2 of the Sherman Act,” Harvard Law Review 88 (Feb. 1975): 697733; Rauchway, Eric, “The High Cost of Living in the Progressives’ Economy,” Journal of American History 88 (Dec. 2001): 898924; Marc Levinson, The Great A&P and the Struggle for Small Business in America (New York, 2012), 136, 142, 147.

27 “Beating ‘Pineboards’ to the Punch,” PDR, May 1930, n.p..

28 “California,” PDR, Nov. 1930, 23.

29 See also Tracey Deutsch, Building a Housewife's Paradise: Gender, Politics, and American Grocery Stores in the Twentieth Century (Chapel Hill, 2010).

30 Strasser, Satisfaction Guaranteed, 65; Melvin Copeland, Principles of Merchandising (New York, 1924).

31 Edward Kremers and Glenn Sonnedecker, Kremers and Urdang's History of Pharmacy (1940; repr., Madison, Wisc., 1986), 275; Temin, Taking Your Medicine, 24–30. In 1906, the National Formulary (NF) was adopted by the federal government as an official document of compounding formulas. The NF was modelled after the U.S. Pharmacopeia; in 1975, the two standard-setting organizations merged. See Lee Anderson and Gregory J. Higby, The Spirit of Voluntarism: A Legacy of Commitment and Contribution: The United States Pharmacopeia, 1820–1955 (Rockville, Md., 1995); Gregory J. Higby, ed. One Hundred Years of the National Formulary: A Symposium (Madison, Wisc., 1989).

32 See the following by Philip, W. Bruce: “Increasing Net Profits by Increasing Average Sales,” Journal of the American Pharmaceutical Association [hereafter JAPA] 17 (June 1928): 576–80; Conference of Teachers of Commercial Pharmacy,” JAPA 17 (Oct. 1928); The Right Side of the Show Case,” JAPA 18 (Aug. 1929): 818–19; A New Faculty Member,” JAPA 19 (Apr. 1930): 388–90.

33 The Department of the National Association of Boards of Pharmacy,” JAPA 18 (Mar. 1929): 284–89.

34 U.S. v. Trans-Missouri Freight Association, 166 U.S. 290 (1897), striking down a railroad combination.

35 Dr. Miles, 220 U.S. at 373.

36 Chicago Board of Trade v. U.S., 246 U.S. 231 (1918), upholding private association rules affecting prices; Tony Freyer, Regulating Big Business (Cambridge, U.K., 1992), 112–13, 191–92.

37 Berk, Gerald, “Communities of Competitors: Open Price Associations and the American State, 1911–1929,” Social Science History 20 (Dec. 1995): 380–81.

38 Chicago Board of Trade, 246 U.S. at 238.

39 John Brooks, “The Trade Union Label,” Bulletin of the Department of Labor 15 (Washington, D.C., 1898): 197–221; Cal. Stats. (1863), 79–80, sect. 353–57; Duguid, Paul, “A Case of Prejudice? The Uncertain Development of Collective and Certification Marks,” Business History Review 86 (Summer 2012): 311–33.

40 Victoria Saker Woeste, The Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865–1945 (Chapel Hill, 1998); Charles Postel, Populist Vision (New York, 2007).

41 Woeste, Benevolent Trust, 179–81.

42 Ibid. See also Hoffman, Elizabeth and Libecap, Gary, “Institutional Choice and the Development of U.S. Agricultural Policies in the 1920s,” Journal of Economic History 51 (June 1991): 397411; and Shepard, Lawrence, “Cartelization of the California-Arizona Orange Industry, 1934–1981,” Journal of Law and Economics 29 (Apr. 1986): 83124.

43 Report of the Commissioners Appointed to Revise the Statutes Relating to Patents, Trade and Other Marks, and Trade and Commercial Names (Washington, D.C., 1900): 349–51, 103. The Lanham Act of 1947 granted trademark status in federal law to collective and certification marks.

44 California passed the Cartwright Act in 1907; amendments in 1909 exempted laborers, marketing associations, and any agreement “the object and purpose of which is to conduct business at a reasonable profit.” California Business and Professions Code (Deering's California Codes), Sect. 16700–758, 16703, 16723, 16724 (San Francisco, 1944).

45 Charles P. Grogan v. H. G. Chaffee, 156 Cal. 611 (1909), upholding manufacturer-set minimum prices because of an absence of intent or power to monopolize; Grether, Ewald, “Experience in California with Fair Trade Legislation Restricting Price Cutting,” California Law Review 24 (Sept. 1936): 640700.

46 Goodwill refers to the value of the brand name and its association with quality or price. FTC, Report on Resale Price Maintenance (Washington, D.C., 1929), 1:45, 18; FTC, Report on Price Maintenance (Washington, D.C., 1931), 2:8, 10, 13; Roy Johnson, William Ingersoll, and Gilbert Montague, The Control of Resale Prices (Chicago, 1936), 120–36.

47 Woeste, Benevolent Trust, 111–12.

48 See Fisher Flouring Mills Co. v. Swenson, 76 Wash. 639 (1913); and Colo. Sess. Laws, 1913, c. 161.

49 See People v. Sacramento Butchers’ Association, 12 Cal. App. 471 (3d Dist. 1910), upholding the California antitrust act.

50 Hills Bros. v. FTC, 9 F. 2d 481 (1926).

51 Mark Pendergrast, Uncommon Grounds: The History of Coffee and How It Transformed Our World (New York, 2000), 150–51, 164, 217.

52 Hills Bros., 485. The Court found that Hills's records of price-cutting discount chains constituted an effort to restrain trade, making any refusal to deal with Piggly Wiggly nearly impossible.

53 Cline v. Frink Dairy Co., 274 U.S. 445 (1927), striking down Colorado's “reasonable price” provision as too vague. The California Supreme Court upheld the Cartwright Antitrust Act in Spegle v. Board of Fire Underwriters, 29 Cal. 2d 34 (1946).

54 “California United,” PDR, Feb. 1929, 13.

55 The PDR published a ten-part series, called “Prescription Pricing,” throughout 1930.

56 “Armand Defends Sales Policy,” PDR, May 1929, 106; G. L. Sorenson, “Profit and Success in Independence,” PDR, Mar. 1930, n.p.; McKesson & Robbins advertisement, “Write to Your Congressman,” PDR, Apr. 1930, n.p.; “Los Angeles and Southern California: Cut Prices and Cut Profits,” PDR, May 1930, 120; E. J. Clary, “Right Competition Is a Stimulant,” PDR, Aug. 1929, 20.

57 “Convention of the California Ph. A.,” PDR, July 1929, 36–42, 39.

58 Hills Bros.

59 “California A. Ph. A. Convention,” PDR, July 1930, 22.

60 “Relieved Druggists Forget Program in Cut-Price Uproar Chain-Store,” Los Angeles Times, 26 June 1930, 12.

61 Ibid.

62 Ibid.; “California Appoints Fair Trade Committee,” PDR, Nov. 1930, 25.

63 “Trade Ethics,” PDR, May 1930, 16–17. Congress ordered the FTC to conduct a study of chain stores and their relation to independent proprietors in addition to a study of public utilities. The results of the chain store investigation were released in two parts: The first, in 1931, advocated for experiments in RPM under FTC oversight. The second, in 1933, stated that RPM was not workable and instead endorsed uniform prohibitions on loss limitation provisions and codes of fair competition outlawing, for example, sales below cost.

64 “The Winds Change,” PDR, May 1930, 13.

65 FTC, Annual Report of the Federal Trade Commission (Washington, D.C., 1927), 186–94.

66 FTC, Report on Open-Price Trade Associations (Washington, D.C., 1929), xxi, 78–79.

67 See FTC, Millwork Industry, Trade Practice Conference [hereinafter TPC] (Washington, D.C., 1928), 140, 143 [circulation of price lists], 143 [later rescinded].

68 FTC v. Gratz, 253 U.S. 421 (1920), limiting FTC power to determine what constituted unfair practices; American Column Co. v. U.S., 257 U.S. 377 (1921), striking down trade association information-sharing practices on costs and prices as intent to fix prices; FTC v. Ralamdam Co., 283 U.S. 643 (1931), limiting the FTC to proscribe only conduct directly related to competitive practices. The Wheeler-Lea Act of 1938 later extended the reach of FTC jurisdiction to “unfair and deceptive practices.” Freyer, Regulating Big Business, 112–13, 175–78, 192–94, 218–23.

69 Maple Flooring Manufacturers’ Association v. U.S., 268 U.S. 563 (1925), upholding association information sharing on prices and output.

70 Sherman Act Conspiracy Theory in Resale Price Maintenance Cases,” University of Chicago Law Review 30 (Summer 1963): 766–83.

71 “Price War Wages Merrily,” PDR, July 1930, 20.

72 “Lehn & Fink to Undertake Fair-Price Campaign,” PDR, July 1930, 64; for brief description of the company, see Lehn & Fink Products Co., Lehman Brothers Collection, Baker Library, Harvard Business School. http://www.library.hbs.edu/hc/lehman/company.html?company=lehn_fink_products_co.

73 Ibid.

74 “Europe Has Met Price Cutting,” PDR, Nov. 1930, 20; “NARD to Consider Philip Survey,” PDR, Apr. 1931, n.p.; H. S. Noel, “Pacific Drug Review Survey Excites Comment from Easterner,” PDR, Apr. 1931, n.p.

75 Edwin R. A. Seligman and Robert Love, Price-Cutting and Price Maintenance: A Digest (pamphlet, n.d.) and Price Cutting and Price Maintenance: A Study in Economics (New York, 1932), 479–84.

76 Rutherford, Malcolm, “Understanding Institutional Economics: 1918–1929,” Journal of the History of Economic Thought 22 (Sept. 2000): 277308, 290.

77 “Volunteer Fighters,” PDR, June 1930, n.p.

78 Front matter on Capper-Kelly bill, PDR, Jan. 1931, 1.

79 R. D. Keim, “The Economics of Price Standardization,” PDR, Aug. 1930, 19.

80 Curtis L. Beach, “What Price Prescriptions?” PDR, Mar. 1931, 18–20.

81 “News of the Associations,” PDR, Nov. 1930, 84.

82 F. C. Felter, “Drug Distribution Census,” PDR, Apr. 1931, n.p.

83 Ibid.

84 “Philip Survey,” PDR, Apr. 1931, 10.

85 Ibid., 1.

86 “Criticism Requested,” PDR, July 1931, n.p.

87 “Philip Survey,” 11; “Philip Survey ‘Goes National,’” PDR, Oct. 1931, 11. Seventeen state pharmaceutical associations issued similar surveys.

88 “The Seligman Price Survey,” PDR, Dec. 1931, 18, 30.

89 Eugene C. Brokmeyer, “News from the Nation's Capital,” PDR, July 1931, 54.

90 Stuart Nixon, “Hawkins’ Challenge of Fair Trade starts ‘Rumble’ from ‘Mother’ of Act,” Stockton Record, 23 Feb. 1950, 21, 36.

91 National Recovery Administration [hereafter, NRA], Work Materials, No. 17: Tentative Outlines and Summaries of Studies in Progress (Washington, D.C., 1935), 374–75.

92 Amendment to the “Unfair Competition Act,” Cal. Stats. 1913, at 508–510; Brokmeyer, “News from the Nation's Capital,” 54.

93 “Interstate or Intrastate?” PDR, Aug. 1931, 10–11.

94 “California's Capper-Kelly Bill,” PDR, July 1931, n.p.; Cal. Stats. 1931, p. 583.

95 “Miles Incorporates California Company,” PDR, Nov. 1931, 13–14; “Majority Sentiment Favors Resale Price Maintenance,” PDR, Nov. 1931, 76.

96 “Southern California Elections,” PDR, Jan. 1932, n.p.

97 “Operating Entirely within the Law,” PDR, Dec. 1931, n.p.

98 “Price Protection Plans Progress,” PDR, Mar. 1932, n.p.

99 “Malicious Merchandising,” PDR, June 1932, 22. Richard W. Longstreth, The Drive-In, the Supermarket, and the Transformation of Commercial Space in Los Angeles (Cambridge, Mass., 1999), 166; “To Operate under Fair Trade Act,” PDR, March 1933, n.p.

100 Hammer v. Dagenhart, 247 U.S. 251 (1918), striking down a national child labor law as a regulation of intrastate trade. This case stood in contradistinction to Champion v. Ames, 188 U.S. 321 (1905), upholding the commerce power as plenary.

101 “Liggett Is Bankrupt,” PDR, May 1933, 16; NRA, Work Materials No. 17, 376–77.

102 Raymond Moley, Seven Years After (New York, 1939), 5.

103 Franklin D. Roosevelt continued, “these [antitrust] laws were never intended to encourage the kind of unfair competition that results in long hours, starvation wages and overproduction.” Franklin D. Roosevelt, “Second Fireside Chat,” 7 May 1933. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=14636.

104 National Industrial Recovery Act (Pub. L. 73–90, 48 Stat. 195, enacted 16 June 1933); Hawley, The New Deal, 31–32, 37, 44.

105 For example, “Building Executives Confer on Code for Recovery Act Plans,” California Highways and Public Works 11 (July–Aug. 1933): 20.

106 Cal. Stats. 1933, at 793.

107 Ibid., c. 1029. Other states enacted similar laws: Ohio, Utah Laws (2d spec. sess. 1933), c. 21; New Jersey Laws 1933, c. 372; Wisconsin Laws 1933, c. 476; New York Laws 1933, c. 781; Colorado Laws (2d sec. sess. 1933–34), c. 17; New Mexico Laws 1934, c. 18; South Carolina Laws 1934, No. 1213; Virginia Laws 91st spec. sess. 1933), c. 61; Washington Laws (1st spec. sess. 1933), c. 50; West Virginia laws (2d spec. sess. 1933), c. 86; Wyoming Laws (spec. sess. 1933), c. 16.

108 Kansas Laws (spec. sess. 1933), c. 78; Mississippi Laws 1934, c. 207; Texas laws (1st spec. sess. 1933), c. 53.

109 “Tentative Code of Fair Competition Adopted; Edna Gleason Elected to Presidency,” PDR, July 1933, 20–21; “NARD Code of Fair Competition,” PDR, Oct. 1933, 17, 30; “NRA Writes Retail Drug Code,” PDR, Oct. 1933, 22–23; “Code of Fair Competition for the Retail Trade,” PDR, Nov. 1933, n.p.

110 NRA, Code of Fair Competition for the Retail Drug Industry (Washington, D.C., 1933). The exception was the NRA's Code of Fair Competition for the Petroleum Industry (Washington, D.C., 1933), art. 5, rule 26. See Lewis Mayer, A Handbook of NRA: Laws, Regulations, Interpretations, Codes, 2nd ed. (Washington, D.C., 1934), sect. 364.

111 NRA, Code of Fair Competition in the Retail Trade (Washington, D.C., 1933), art. 7–9, sect. 1. The prohibition of sales below cost was strengthened on 29 Mar. 1934, by art. 8, sect. 6, which prohibited sales below the manufacturer's wholesale list price per dozen items.

112 15 U.S. Codes Supplement VII, sect. 705 (1933).

113 “Drug Institute of America, Inc.,” Druggist Circular 79 (1935): iv. See also Ronald Hamowy, Government and Public Health in America (Northhampton, Mass., 2008), 154.

114 “Drug Institute Leader in City,” Spokane Daily Chronicle, 2 June 1933, 3.

115 Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York, 2013), 229–30.

116 “To decide it wisely, it is necessary to consider the relevant facts, industrial and commercial, rather than established legal principles.” Justice Louis Brandeis, Boston Store v. American Gramophone Co., 246 U.S. 8, at 27–28 (1918); Schechter Poultry Co. v. U.S., 295 U.S. 495 (1935).

117 See Developments in the Law—Unfair Competition,” Harvard Law Review 46 (May 1933): 1171–95.

118 Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York, 1998), 7, 78–91.

119 Nebbia v. New York, 291 U.S. 502 (1934).

120 Ibid, at 518, 538.

121 Ibid, at 538, 503.

122 Ibid, at 537, 554.

123 Max Factor & Co. and Sales Builders, Inc. v. Kunsman, 5 Cal. 2d 446 at 455–57 (1936). The U.S. Supreme Court denied cert.

124 Fair Trade Legislation,” Harvard Law Review 49 (Mar. 1936): 811–21; Waite, John Barker, “Public Policy and Personal Opinion,” Michigan Law Review 19 (Jan. 1921): 265–82.

125 Cushman, Rethinking the New Deal Court; Robinson, Gustavus, “The Public Utility Concept in American Law,” Harvard Law Review 41 (Jan. 1928): 277308; McAllister, Breck, “Lord Hale and Business Affected with a Public Interest,” Harvard Law Review 43 (Mar. 1930): 759–91.

126 Legislation,” Columbia Law Review 36 (Feb. 1936): 293–96. In 1931, the FTC opposed resale price agreements with government supervision as unworkable; however, FTC commissioners remained divided on the issue. See FTC, Report on Resale Price Maintenance, 2:1–6.

127 State Board of Tax Commissioners v. Jackson, 283 U.S. 527 (1931).

128 S. 3518 and S. 3822, 74th Cong., 2d Sess. (1936).

129 Robinson-Patman Act or Anti-Price Discrimination Act (Pub. L. No. 74–692, 49 Stat. 1526, 1936). Nancy Beck Young, Wright Patman: Populism, Liberalism, and the American Dream (Dallas, 2000), 73–104.

130 Miller-Tydings Act (Pub. L. 314, 75th Cong., 1st Sess., 17 Aug 1937).

131 Nixon, “Hawkins’ Challenge,” 36.

132 Rudolph, Frederick, “The American Liberty League, 1934–1940,” American Historical Review 56 (Oct. 1950): 1933.

133 On low price consumer activism, see Meg Jacobs, Pocketbook Politics: Economic Citizenship in Twentieth-Century America (Princeton, 2005).

134 Hovenkamp, Opening of American Law, 211–19.

135 Director, Aaron and Levi, Edward, “Law and the Future: Trade Regulation,” Northwestern University Law Review 51, no. 2 (1956): 281–96; Robert Van Horn and Philip Mirowski, “The Rise of the Chicago School of Economics and the Birth of Neoliberalism,” in The Road from Mont Pelerin, ed. Philip Mirowski and Dieter Plehwe (Cambridge, Mass., 2009). Today, the Chicago School of Law and Economics supports private RPM agreements as a permissible vertical restraint.

136 Jacobs, Pocketbook Politics. On the end of experimentation in antitrust policy and law, see Brinkley, The End of Reform; and Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York, 1955).

Among the many people who have helped me think about the issues in this article I would particularly like to thank Brian Balogh, Charles McCurdy, Olivier Zunz, Gerald Berk, Lou Galambos, Logan E. Sawyer, Christy Chapin, Herb Hovenkamp, Tony Freyer, Victoria Saker Woeste, Tracey Deutsch, Marina Moskowitz, R. Daniel Wadhwani, H. Daniel Phillips, Geoff Jones, Walter Friedman, and several anonymous reviewers.

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