Contracts And Combinations in Restraint of Trade

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" 54 Reference is here and in sue- on December 14, 15, 16, 1911. Mr.
ceeding paragraphs made to the Brandeis is referred to in the testimony of Louis D. Brandeis be- capacity in which he testified, fore the Committee on Interstate 55 Eeport of hearing before Commerce of the United States Senate Committee on Interstate Senate, 62d Congress. It was given Commerce, supra, 1146.
71 74] THE COMMON LAW [Ch. 5 Mr. Brandeis' experience and authority have been so great, and his views before the Senate C
...ommittee are expressed so fully and frankly, that it is worth considerable trouble to ascertain just what were the grounds for this opinion, and how far they may require a holding by a court that mere size is, in and of itself, illegal, rather than prima facie evidence of illegal excluding purposes and practices.
75. (1) It is clear from Mr. Brandeis' testimony that he does not condemn mere size because it, in and of itself alone, tends to exclude others from the business. The main thesis of his testimony is that size and he is referring particularly to the size of our so-called American trusts results in such economic inefficiency that without any excluding practices and purposes they must fail, or at least lose their relative position in the mar- ket by reason of successful competition carried on by smaller and more efficient units.


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