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Learned Hand, Alcoa, and the Reluctant Application of the Sherman Act

54 Pages Posted: 29 Mar 2014  

Marc Winerman

Independent

William E. Kovacic

George Washington University - Law School; King's College London – The Dickson Poon School of Law

Date Written: December 28, 2013

Abstract

As Gerald Gunther discusses in his monumental biography of Learned Hand, Hand was active in Theodore Roosevelt’s attempt to return to the White House in 1912. During those years, Roosevelt denounced antitrust as "rural toryism," and Hand shared Roosevelt’s skepticism. How, then, did Hand write the decision three decades later in United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), with, among other passages, its tributes to small business and to non-economic values of antitrust? The text itself contains an (overlooked) clue – the discussions of antitrust's goals are couched either in the third person or the passive voice. Further, the pre-conference memos that the three judges on the panel wrote to each other show that Hand (along with his colleagues) did not seek to implement his own policy views; indeed, Hand "despise[d] this whole method of dealing with a very real and very serious problem in our industrial life;..." Rather, consistent with Hand’s philosophy of legislative interpretation, the decision sought to implement Congressional intent as Hand perceived it – and that intent was sufficiently clear, Hand believed, that the public would "quite rightly, write us down as asses" unless the panel found a Section 2 violation.

Keywords: Learned Hand, Alcoa, Aluminum Company of America, competition policy, monopolization

Suggested Citation

Winerman, Marc and Kovacic, William E., Learned Hand, Alcoa, and the Reluctant Application of the Sherman Act (December 28, 2013). Antitrust Law Journal, Vol. 79, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2417338

Marc Winerman

Independent ( email )

No Address Available

William E. Kovacic (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202.994.8123 (Phone)

HOME PAGE: http://www.law.gwu.edu/faculty/profile.aspx?id=1731

King's College London – The Dickson Poon School of Law

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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