Law and the Future: Trade Regulation
![handle is hein.journals/miscollr17 and id is 13 raw text is: LAW AND THE FUTURE:
TRADE REGULATION
Aaron Director*
Edward H. Levi**
[This Article originally appeared in Volume 51 of the Northwestern
University Law Review. It is reprinted here with the permission of the
authors and the Northwestern University Law Review. References to this
Article in the symposium refer to the original Northwestern University
Law Review page numbers which appear in bold in this reprint.]
(281) In this note we do not attempt to predict the future of the antitrust laws.
Rather we wish to direct attention to certain problem areas for study. We assume
for the purposes of this discussion that an over-riding belief in both free enter-
prise and in competition will prevail over future possible NRA attempts. We
assume also that despite the extension of government regulation of one form or
another, there will still be a place for regulation by competition. The ability of
the antitrust laws in weathering NRA and government regulation attempts in the
past provides a basis for assuming the laws will continue. The durability of the
antitrust laws is perhaps their main characteristic. In large measure, this is a
common law durability, built on a case by case development, and exhibiting that
flexibility which is the strength of the common law. But this flexibility is now
limited by particularizing legislation enacted to accompany the Sherman Act.
Throughout its history, indeed, the Sherman Act has exhibited the twin tenden-
cies of flexibility and ambiguity, on the one hand, and a drive for certainty and
automaticity, on the other. At the moment, the drive for certainty and automatici-
ty seems paramount, but not without criticism and reaction. Much of this drive
for certainty rests not so much on the concept of fair warning, which is inherent
in any idea of the rule of law, but rather more on the belief that new and automat-
ic applications of the laws will catch objectionable conduct and effects in their
incipiency. The idea of incipiency seems to rest on economic doctrines, or, con-
clusions drawn from experience. Because of these doctrines or conclusions, cer-
tain types of conduct are deemed harmful in themselves, although the harm in
the particular case may not be visible. Economic theory or experience thus sub-
stitutes for an observed effect.
In no area, of course, is the law self-contained, that is, completely independent
of the teachings of other disciplines or the assumptions, which may change, of
underlying philosophy. The common law, itself, provides the mechanism for
moving from doctrines outside the law into felt distinctions which make the law.
As much as any field of law, however, and more than most, the antitrust laws
* Professor of Economics, University of Chicago Law School, Ph.B., Yale Univ., 1924.
* Professor of Law and Dean, University of Chicago Law School. Ph.B., Univ. of Chicago, 1932, J.D.,
1935; J.S.D., Yale Univ., 1938.](ViewImageLocal?handle=hein.journals/miscollr17&div=8&collection=journals&method=preview&ext=.png&size=3)
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