ANTI-BALLISTIC-MISSILE TREATY OF 1972 The Anti-Ballistic-Missile Treaty of 1972 ABM Treaty limited the number of defensive anti-ballistic missile ABM systems that the United States and t
Trang 1more debasing because they do not realize it.” She urged women to recognize the inequities they faced and to speak and act for their own freedom
When Anthony died in 1906, women did not yet have the right to vote in presidential elections
When the NINETEENTH AMENDMENT to the U.S
Constitution finally became law in 1920, it was called the Anthony amendment in recognition of her valiant efforts to gain suffrage
Anthony was also honored in 1979 and
1980, when the U.S Mint issued one dollar coins bearing her likeness She became the first woman to be pictured on a U.S coin in general circulation
FURTHER READINGS Barry, Kathleen 1988 Susan B Anthony: A Biography of a Singular Feminist New York: New York Univ Press.
Cooper, Ilene 1984 Susan B Anthony New York: Watts.
Gurko, Miriam 1974 The Ladies of Seneca Falls: The Birth of the Woman’s Rights Movement New York: Macmillan.
Wells, Ida B 1970 Crusade for Justice: The Autobiography of Ida B Wells Ed Alfreda M Duster Chicago: Univ of Chicago Press.
CROSS REFERENCES Fifteenth Amendment; Nineteenth Amendment; Stanton, Elizabeth Cady; Temperance Movement; Women ’s Rights.
ANTI-BALLISTIC-MISSILE TREATY
OF 1972 The Anti-Ballistic-Missile Treaty of 1972 (ABM Treaty) limited the number of defensive anti-ballistic missile (ABM) systems that the United States and the former Soviet Union could use in preparation for nuclear war (23 UST 3435: TIAS 7503; 944 UNTS 13, U.S DEPARTMENT OF STATE, Treaties in Force, 1993) Restrictions on ballistic missile defenses (BMDs), military warning systems designed to alert and protect a nation, composed the bulk of the treaty’s articles The treaty limited each country’s supply of remote-controlled, long-range nuclear rockets, or intercontinental ballistic missiles (ICBMs) Fol-lowing the breakup of the Soviet Union in 1991, the Russian Federation continued to adhere to the agreement In 2001, however, the United States announced that it would no longer abide
by the pact
On May 26, 1972, at the U.S.-Soviet summit
in Moscow, President RICHARD M NIXON of the United States and President Leonid Brezhnev of the Soviet Union signed, in conjunction with the Strategic Arms Limitation Talks of 1969–72 (SALT I), the ABM Treaty The treaty limited
each party to two ABM sites, with no more than one hundred ABM launchers and interceptors
at each site One of these sites could protect an ICBM silo deployment area, and the second could protect the national capital The treaty prohibited the development, testing, or deploy-ment of sea-based, air-based, space-based, or mobile land-based ABM systems Furthermore,
it excluded the transfer or deployment of ABM systems to or in other nations The 15 articles of the treaty were of unlimited duration and would come up for renewal every five years
The principles of the treaty explicitly reflected the policy of mutual assured destruc-tion (MAD)—the belief that the best way to control nuclear arms is to allow both sides enough power to ensure the destruction of both nations in the event of war As stated in Article I
of the treaty, each side agreed “not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense, and not to deploy ABM systems for defense of an individual region” (Durch 1988) Article II defines an ABM system as“a system to counter strategic ballistic missiles or their elements in flight trajectory, currently consist-ing of ABM interceptor missiles ABM launchers [and] ABM radars.” Article III reiterates the ban on ABM deployment, except-ing, for each side, one deployment area around the national capital and one around an ICBM launcher deployment area This provision was later reduced, in 1974, to just one deployment area for each country, allowing“no more than
100 ABM interceptor missiles at launch sites.” Articles IV to XV outline provisions for, among other issues, nuclear testing, radar deployment, amendments to the treaty, and the terms of treaty withdrawal
After the ABM Treaty was ratified by the U.S Congress, legislators refused to authorize funds for building an ABM site outside Washington, D.C In early 1975, the United States deployed its single permitted system near the Minuteman Fields at Grand Forks Air Force Base in North Dakota Within a year, however, Congress deactivated the system on the ground that it was not very cost-effective The Soviets, mean-while, used their ABM deployments to protect Moscow
Despite attempts to follow the principles of SALT I, continued limitations on strategic arms fell apart with the SALT II Treaty of 1979 The
308 ANTI-BALLISTIC-MISSILE TREATY OF 1972
Trang 2U.S Congress refused to ratify the treaty, which
had been signed by PresidentsJIMMY CARTERand
Leonid Brezhnev SALT II went on to draw
heavy fire in the 1980s from the newly
empowered Reagan administration Whereas
the Soviets generally adhered to a strict
interpretation of the ABM Treaty, President
RONALD REAGAN advocated “peace through
strength” and pushed for new WEAPONS
pro-grams and policies Reagan reinterpreted the
treaty liberally, putting it to its most serious test
His proposal to render nuclear ballistic missiles
ineffective and obsolete, with the Strategic
Defense Initiative (SDI), a space-based BMD
system popularly known as Star Wars, caused
great debate at home and considerable alarm in
the Soviet Union
Like Reagan, opponents of the ABM Treaty
believed that its limits were based on one-way
accommodation, that is, allowing the Soviets to
retain their numerical superiority, as seen in
SALT II The Soviets had previously established
numerical superiority in ICBM deployment,
and the ABM Treaty supposedly held back
the development of further U.S weapons
technology Especially troublesome to some was the Soviet’s Krasnoyarsk radar system in western Siberia According to Article VI of the ABM Treaty, an early-warning radar with this orienta-tion should have been located on the Pacific coast
or in the outer Arctic reaches of Siberia Many believed that Moscow was cheating on its end of the deal, and thus that the treaty should go
In the 1980s tensions between the United States and the Soviet Union flared In October
1985 the Reagan administration announced a new interpretation of the ABM Treaty, under which the development and testing of “exotic”
ABM systems (those not spelled out in the treaty itself, e.g., Star Wars) would have no limit In 1986, with the Strategic Arms Reduc-tion Treaty (START) talks in full swing, the United States and the Soviet Union treated the ABM Treaty as a central bargaining chip
Moscow looked to maintain the treaty for at least another decade, with tight constraints on space testing Washington, meanwhile, looked
to abide by the treaty for, at most, another decade and expected lessened constraints on the space testing of exotic technologies
U.S President Richard Nixon and Soviet President Leonid Brezhnev sign the Anti-Ballistic-Missile Treaty in Moscow on May 26, 1972.
AP IMAGES ANTI-BALLISTIC-MISSILE TREATY OF 1972 309
Trang 3The ensuing events of the late 1980s and early 1990s caught everyone by surprise
Although the United States’ interest in the SDI continued into the George H W Bush administration years, and persisted through the eventual breakup of the Soviet Union, both the United States and the Soviet Union showed interest in pursuing at least the spirit of the ABM Treaty True arms-reduction talks devel-oped with the Soviet demise In 1991 Soviet nuclear forces were split up among four countries—Russia, Ukraine, Belarus, and Kazakhstan—and spokespersons on both sides saw revision of the ABM Treaty as necessary
The START agreements of 1992 shed new light
on older concessions As the chief U.S architect
of the original ABM Treaty,HENRY KISSINGERnow joined others in declaring it obsolete in the new era of disarmament As a gesture ofGOOD FAITH, the Soviets demolished their controversial Krasnoyarsk radar system; a shoe factory now occupies the site
In the years that followed, the United States and Russia both worked together and strayed from the MAD doctrine They also turned their attention elsewhere, mainly to the developing world New nations on the list of nuclear powers included Israel, India, Pakistan, Algeria, Egypt, Iran, Iraq, Libya, North Korea, and Syria, none of which had any formal attachment to the ABM Treaty U.S and former Soviet strategists went from analyzing BMD research provisions set forth in the ABM Treaty to setting up safeguards against attack from other powers
In December 2001, however, the United States announced that it would no longer follow the ABM treaty The withdrawal came after months of failed negotiations with Russia to jointly abandon the ABM treaty and to craft a new pact based on the current world situation
The formal announcement by PresidentGEORGE
W BUSH set in motion a six-month period for ending the pact He stated that the ABM Treaty
“hinders our government’s ability to develop ways to protect our people from future terrorist
or rogue state missile attacks.”
On June 13, 2002, the United States officially withdrew from the ABM Treaty In response to the United States withdrawal, the following day Russia announced that it would
no longer be bound by the START II Strategic Arms Reduction Treaty that was signed by both President GEORGE H.W BUSH and Russian
President Boris Yeltsin on January 3, 1993 However, Russia’s decision to pull out from START II had no real impact, as the terms of that treaty had been superseded by the Strategic Offensive Reductions Treaty (SORT) SORT was entered into by President George W Bush and Russian President Vladimir Putin on May 24,
2002, and was ratified on June 1, 2003 Under that treaty, both countries agreed to reduce their strategic nuclear warheads by 2012 Although Putin expressed regret at the United States’ decision to withdraw from the ABM Treaty, he did not signal a move to build a competing system Putin was not the only person to express regret President George W Bush’s decision to withdraw from the ABM Treaty was met with criticism by members of the United States House of Representatives Thirty-two members
of the House of Representatives, led by Ohio Representative Dennis Kucinich, filed a lawsuit against President George W Bush, charging that
he did not have the authority to unilaterally withdraw the United States from the ABM treaty without congressional approval The district court dismissed the case and ruled that the members of the House of Representatives did not have any standing to challenge President Bush’s decision, because they were not person-ally injured by the president’s act, and because the issue of a treaty termination is a “political question” that cannot be resolved by the courts The Bush administration made it clear that the United States’ withdrawal from the treaty was motivated by the desire to build and deploy
a long-range missile defense system that would protect the nation from attacks by rogue nations such as North Korea and Iran The deployment
of the missile shield system was set for 2004 and was planned to have a missile radar system placed in the Czech Republic as well as 10 long-range missile interceptors in Poland On September 17, 2009, however, President Barack Obama’s administration announced that it was eliminating the original plans of the Bush Administration’s long-range missile defense system to implement a system that favors more flexible, short-range systems that will counter potential short- or mid-range European missile
THREATSfrom Iran
FURTHER READINGS American-Soviet Treaty on the Limitation of Anti-Ballistic Missile Systems May 26, 1972 Moscow.
310 ANTI-BALLISTIC-MISSILE TREATY OF 1972
Trang 4Assembly of Western European Union 1993 Anti-Missile
Defence for Europe, Symposium, Rome, April 20 –21.
Blackwill, Robert D., and Albert Carnesale, eds 1993 New
Nuclear Nations New York: Council on Foreign
Relations.
Boese, Wade “U.S Withdraws from ABM Treaty; Global
Response Muted ” Arms Control Association Available
online at http:// www.armscontrol.org/print/1071
web-site home page: http://www.armscontrol.org (accessed
September 24, 2009).
Durch, William J 1988 The ABM Treaty and Western
Security Cambridge, Mass.: Ballinger.
——— 1987 The Future of the ABM Treaty London:
International Institute for Strategic Studies.
Greenville, J.A.S., and Bernard Wasserstein 1987 The Major
International Treaties Since 1945 London: Methuen.
Joint Chiefs of Staff 1994 Doctrine for Joint Theater Missile
Defense Joint pub no 3-01.5, March 30.
“Judge Allows Bush’s Withdrawal from ABM Treaty to
Stand: Leaves Open Possibility of Future Congressional
Role in Treaty Termination ” Lawyers Committee on
Nuclear Policy Available online at http://lcnp.org/
disarmament/ABMlawsuit/ABMdecisionpr.pdf website
home page: http://www.lcnp.org (accessed September
24, 2009).
Kartchner, Kerry M 1992 Negotiating START New
Brunswick, N.J., and London: Transaction.
Martinez, Luis, Raddatz, Martha, Compton, Ann
Septem-ber 17, 2009 “Obama: New European Missile Plan will
Strengthen U.S Defenses ” ABCNews.com Available
online at http://abcnews.go.com/print?id=8599260.
Website home page: http://abcnews.go.com (accessed
September 24, 2009).
Mazarr, Michael J., and Alexander T Lennon, eds., 1994.
Toward a Nuclear Peace New York: St Martin’s Press.
Perez-Rivas, Manuel December 14, 2001 “U.S Quits ABM
Treaty ” CNN.com: Inside Politics Available online at
www.cnn.com/2001/ALLPOLITICS/12/13/rec.bush.
abm/index.html (accessed May 30, 2003).
Voas, Jeanette 1990 Soviet Attitudes towards Ballistic Missile
Defence and the ABM Treaty London: International
Institute for Strategic Studies.
CROSS REFERENCES
Arms Control and Disarmament; Bush, George Herbert
Walker; International Law
ANTI-DEFAMATION LEAGUE
The Anti-Defamation League (ADL) is an agency
of B’snai B’srith, an international Jewish service
organization The ADL combats anti-Semitism,
religious and racial intolerance, and all forms of
organized discrimination based on stereotypical
beliefs The ADL also is a strong advocate of the
state of Israel,LOBBYING Congress in support of
legislation that benefits the Jewish State It has its
headquarters in New York City and has regional
and satellite offices throughout the United States
The ADL also has offices in Jerusalem and Vienna
Sigmound Livingston founded the ADL in
1913 with the support of B’snai B’srith
Livingston, a Chicago attorney, stated that the mission of the league was“to stop, by appeals to reason and conscience, and if necessary, by appeals to law, the DEFAMATION of the Jewish people to secure justice and fair treatment to all citizens alike [and] put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.”
The ADL first gained recognition by taking steps to eradicate negative stereotypes of Jews in print and their stereotyping on stage and in film By the early 1920s, objectionable refer-ences to Jews in the national press had virtually disappeared However, popular culture was filled with negative stereotypes of Jews The rise
of the KU KLUX KLANin the 1920s was based as much on anti-Semitism as racial intolerance
The ADL responded by circulating pamphlets that challenged hatred of Jews and demanded apologies from prominent citizens, such as automobile manufacturer Henry Ford, for endorsing anti-Semitic views
With the rise of Nazism in the 1930s, the ADL fought U.S supporters of Hitler who endorsed his anti-Semitic policies During this decade, the ADL began to collect information on extremist indivi-duals and organizations and to monitor and investigate fascist groups in the United States
These fact-finding and monitoring activities have remained a central part of the ADL’s work
Since the 1940s, the ADL has lobbied for
CIVIL RIGHTS legislation, filed briefs in courts supporting the SEPARATIONof church and state, and educated succeeding generations in reli-gious tolerance Since the creation of Israel in
1948, the ADL has also defended Israel’s right to exist and has fought against anti-Zionism In the 1990s, the organization began monitoring theINTERNETfor evidence of anti-Semitism and right-wing extremism In 2000 the ADL issued a report titled “Combating Extremism in Cyber-space,” a review of legal issues raised by hate groups using the Internet The ADL’s monitor-ing of the Internet and other forms of communication took on new urgency in light
of the events surrounding the SEPTEMBER 11TH ATTACKS of 2001 on the United States In addition to the many other issues concerning the ADL including school vouchers and Presi-dent George W Bush’s “Faith Based Initiative”
to allow certain charities to receive federal funds, the ADL Internet site features a “Terror-ism Update.” The ADL has also created a
ANTI-DEFAMATION LEAGUE 311
Trang 5handbook with suggestions for keeping Jewish institutions safe from terrorist attacks
The ADL is divided into numerous groups and departments The Civil Rights Division is the most prominent wing of the organization, as
it has investigated and exposed anti-Semitism and bigotry The division’s research department has become a central source of information on organized bigotry, collecting and analyzing racist, anti-Semitic, terrorist, and extremist literature The department issues an annual Audit of Anti-Semitic Incidents that serves as a reliable measurement tool of anti-Semitic trends The Civil Rights Division’s fact-finding department uses investigative journalists to track the activities of extremist groups For example, this department tracked neo-Nazi skinhead activity in 33 countries and issued the first major survey on this movement
The Civil Rights Division’s legal affairs department serves as the ADL’s advocate in court and before legislatures The department’s attorneys file briefs, analyze proposed bills and regulations, draft model laws, and prepare
TESTIMONY and legal reports for ADL staff The department’s model hate crimes law has been adopted by almost four-fifths of the states and has been upheld as constitutional by the U.S
Supreme Court in State v Mitchell, 508 U.S
476, 113 S Ct 2194, 124 L.Ed.2d 436 (1993) In addition, the department works with local attorneys in the ADL’s thirty regional offices
The ADL’s Braun Holocaust Institute, estab-lished in 1977, serves as a centralized information center on the Holocaust The institute encourages public and religious schools to teach about the Holocaust by providing curricula for elementary and high school students It has also organized teacher-training workshops and semi-nars to help teachers incorporate Holocaust studies into mainstream disciplines The insti-tute’s collection of Holocaust-related materials is recognized as one of the best in the world In addition, the institute publishes Dimensions: A Journal of Holocaust Studies, a general interest magazine on the Holocaust, and resource guides, catalogs, and background primers
The Government and National Affairs Office
in Washington, D.C., serves as the ADL’s lobbyist, promoting the legislative agenda of the organization The office worked with Congress to establish a congressional task force against anti-Semitism The ADL has also led a broad coalition
of civil rights, religious, and law enforcement groups in support of federalHATE CRIMEinitiatives
In addition, the ADL has fought against federal school voucher programs and has sought to increase workplace protection for employees who wish to observe their religious duties The ADL’s commitment to the state of Israel includes maintaining an office in Jerusalem This office provides information on current issues to ADL staff and members, and it communicates the U.S Jewish community’s concerns to the Israeli government The Jerusalem office also intro-duces visiting Americans, such as government officials and journalists, to the people and politics
of Israel The ADL has endorsed the need for a just peace between Israelis and Palestinians but has been an adamant defender of Israel and opponent ofTERRORISM
FURTHER READINGS Anti-Defamation League Web site Available online at http:// www.adl.org (accessed July 4, 2009).
Levin, Jack, and Jack McDevitt 2002 Hate Crimes Revisited New York: Westview.
Stern-Larosa, Caryl, and Ellen Hoffheimer-Bettmann 2001 Anti-Defamation League’s Hate Hurts: How Children Learn and Unlearn Prejudice New York: Scholastic CROSS REFERENCES
Hate Crime; Hate Crime: “Do Hate Crime Laws Restrict First Amendment Rights? ” (In Focus); Libel and Slander. ANTICIPATION
The performance of an act or obligation before it is legally due In patent law, the publication of the existence of an invention that has already been patented or has a patent pending, which are grounds for denying a patent to an invention that has substantially the same structure and function
as the earlier invention
In the law ofNEGLIGENCE, anticipation refers to the knowledge that there is a reasonable proba-bility that the consequences of particular conduct
of one individual will result in injury to others The anticipation of an invention also occurs
if the later invention is merely anADAPTATIONof
an earlier patent, which would be obvious to a skilled person who need only exercise some mechanical skill to develop the same adaptation
ANTICIPATORY REPUDIATION The unjustifiable denial by a party to a contract of any intention to perform contractual duties, which occurs prior to the time performance is due
312 ANTICIPATION
Trang 6This form of breach, also known as
anticipatory breach of contract, occurs when
one party positively states that he or she will not
substantially perform a contract The mere
assertion that the party is encountering
difficul-ties in preparing to perform, is dissatisfied with
the bargain, or is otherwise uncertain whether
performance will be rendered when due is
insufficient to constitute aREPUDIATION Another
type of anticipatory breach consists of any
VOLUNTARY ACT by a party that destroys, or
seriously impairs, that party’s ability to perform
the contract
The remedies available to the
nonrepudiat-ing party upon an anticipatory repudiation
entail certain obligations If the nonrepudiating
party chooses to ignore the repudiation and
proceeds with his or her performance, the duty
to mitigate damages—which imposes on the
injured party an obligation to exercise
reason-able effort to minimize losses—mandates that
the nonrepudiating party not perform if the
consequence of performance would be to
increase the damages In addition, this duty
requires, where applicable, the procurement of
a substitute performance
If the nonrepudiating party implores or
insists that the other party perform, this
demand, in and of itself, does not divest the
nonrepudiating party’s right to damages The
presence or absence of a breach of contract
depends solely upon the repudiating party’s
actions The prevailing view is that the
non-repudiating party may pursue any remedy for
breach of contract, even though he or she has
informed the repudiating party that he would
await the latter’s performance
The nonrepudiating party also possesses the
option to do nothing and to commence an
action for breach after the time for
perfor-mance Under the majority view, such an action
can be instituted without tendering the
non-repudiating party’s performance or even
alleg-ing or provalleg-ing that the party was ready, willalleg-ing,
and able to perform The nonrepudiating party
must demonstrate, however, that he or she
would have been ready, willing, and able to
perform but for the repudiation
In regard to the law of sales, the UNIFORM
COMMERCIAL CODE(UCC), a body of law
govern-ing commercial transactions by the states,
provides that anticipatory repudiation entails
the right of one party to a contract to sue for
breach before the performance date when the other party communicates the intention not to perform The repudiation can, however, be retracted before the performance date if the nonrepudiating party has not acted on the basis
of the repudiation Some jurisdictions direct the injured party to await the performance date before instituting an action
ANTILAWYER MOVEMENT Throughout early U.S history, legal practi-tioners were the subject of ambivalence on the part of the general public The attitude against lawyers reached its peak after the Revolutionary War and remained hostile until the beginning of the nineteenth century
During the early days of the colonies, the system for the administration of justice was based on arbitration and religious principles, and lawyers specially educated and skilled in the law were presumably not needed and were often restricted or prohibited from practicing Judges were ordinary men who used unpolished methods of questioning to determine the facts
of each case; defendants were their own lawyers
This system remained successful as long as the population of each community remained small and manageable, and the people were clear about their rights and obligations to their neighbors and the community
By the end of the seventeenth century, the colonies experienced a period of growth, and the original judicial system became unsatisfac-tory FormalPLEADINGand skilled lawyers began
to replace the primitive methods of earlier colonial times
After the Revolutionary War, Americans sought a new form of jurisprudence to interact with their newly gained freedoms Laws were less confining, due to the belief that moral fiber was more important to satisfactory conduct than legislation
During this period, the antilawyer move-ment gained momove-mentum Historians speculate that it evolved as a result of former prejudices and conflicts toward the legal profession
Although lawyers in the past had not been viewed favorably, they achieved prominence and esteem as strong proponents of freedom from England during the Revolutionary War
After the war, lawyers were once again an important part of the legal system but were used
ANTILAWYER MOVEMENT 313
Trang 7primarily by the wealthy As a result, they were often in conflict with those who were poor and could not pay their debts, which led to a resurrection of the old negative attitudes against them
Lawyers were regarded with suspicion They were accused of initiating unnecessary lawsuits, impeding the justice system, and prolonging trials to secure additional fees from unsuspect-ing clients They were also criticized for the use
of legal jargon, causing simple matters to seem complicated
Despite these attacks, lawyers managed to attain political power They were regarded as conspirators, however, for people could not accept the idea that lawyers who served as politicians made the laws by which they secured
a living as legal practitioners It was also feared that lawyers, judges, and legislators would band together to control society, depriving the
common people of some of their hard-won freedoms Although the fears were exaggerated, they were true to some degree, for lawyers did earn a living from the ramifications that legislation had upon the general public Two remedies were recommended to rec-oncile the proponents of the antilawyer senti-ment and lawyers The first suggestion was an updated version of the early colonial justice system, which prohibited lawyers from practic-ing A judge representing the interests of the community would preside over the court and instruct the jury Judges were educated aristo-crats who could be impeached if their conduct
so warranted If a LEGAL REPRESENTATIVE was deemed necessary, a friend of the DEFENDANT
could participate in the arbitration
The second suggestion provided for a small group of professional lawyers to practice as public servants Their salaries and actions would
be controlled by the state, and their chief function would be to clarify legal principles of each case for the jury
The conflicting feelings toward lawyers culminated in several incidents, the most noteworthy of which was known as Shays’s Rebellion The rebellion began in 1786 when Massachusetts voters elected a majority of nonlawyers to the General Court This action led to aRIOT, and hostile agrarian mobs overran the courthouses, closing them down The governor dispatched the state army, which successfully quelled the agitators
Shays’s Rebellion did not stop the people of Massachusetts from electing lawyers to political positions The very tactics they feared in the courtroom were highly desirable in politics to control government officials; in spite of their conflicting feelings, voters were still attracted to legal skills
The new methods of justice proved to be inefficient Arbitration was fruitless, and laymen were fallible as lawyers By 1790, most cases were again tried by lawyers, and the antilawyer movement began to wane
CROSS REFERENCE Shays ’s Rebellion.
ANTINOMY
An expression in law and logic to indicate that two authorities, laws, or propositions are inconsistent with each other
A wood engraving
from an 1884
Harper’s Monthly
shows Daniel Shays
and his comrades
occupying a
Massachusetts
courthouse to prevent
the court from
directing legal action
at debt-ridden
farmers in 1786.
BETTMANN/CORBIS.
314 ANTINOMY
Trang 8ANTITRUST LAW
Antitrust law refers to legislation enacted by the
federal and various state governments to regulate
trade and commerce by preventing unlawful
restraints, price-fixing, and monopolies; to
pro-mote competition; and to encourage the
produc-tion of quality goods and services at the lowest
prices, with the primary goal of safeguarding
public welfare by ensuring that consumer
demands will be met by the manufacture and
sale of goods at reasonable prices
Antitrust law seeks to make enterprises
compete fairly It has had a serious effect on
business practices and the organization of U.S
industry Based on the belief that free trade
benefits the economy, businesses, and
consu-mers alike, the law forbids several types of
RESTRAINT OF TRADE and monopolization These
fall into four main areas: agreements between or
among competitors, contractual arrangements
between sellers and buyers, the pursuit or
maintenance of monopoly power, and mergers
The Sherman Anti-Trust Act of 1890 (15
U.S.C.A § 1 et seq.) is the basis for U.S
antitrust law, and many states have modeled
their own statutes upon it As weaknesses in the
Sherman Act became evident, Congress added
amendments to it at various times through
1950 The most important are theCLAYTON ACT
of 1914 (15 U.S.C.A § 12 et seq.) and the
ROBINSON-PATMAN ACTof 1936 (15 U.S.C.A § 13
et seq.) Congress also created a regulatory
agency to administrate and enforce the law,
under theFEDERAL TRADE COMMISSIONAct of 1914
(15 U.S.C.A §§ 41–58) In an ongoing analysis
influenced by economic, intellectual, and
polit-ical changes, the U.S Supreme Court has played
the leading role in shaping the ways in which
these laws are applied
Enforcement of antitrust law depends largely
on two agencies: the Federal Trade Commission
(FTC), which may issue cease-and-desist orders
to violators, and the Antitrust Division of the
U.S DEPARTMENT OF JUSTICE (DOJ), which can
litigate Private parties may also bring civil suits
Violations of the Sherman Act are felonies
carrying fines of up to $10 million for
corporations, and fines of up to $350,000 and
prison sentences of up to three years for
persons The federal government, states, and
individuals may collect treble (i.e., triple) the
amount of damages that they have suffered as a
result of injuries
Origins Antitrust law originated in reaction to a public outcry over trusts, which were late-nineteenth-century corporate monopolies that dominated U.S manufacturing and mining Trusts took their name from the legal device of business incorporation called trusteeship, which consoli-dated control of industries by transferring stock
in exchange for trust certificates The practice grew out of necessity Twenty-five years after the Civil War, rapid industrialization had blessed and cursed business Markets expanded and productivity grew, but output exceeded demand, and competition sharpened Rivals sought greater security and profits in cartels (mutual agreements to fix prices and control output) Out of these arrangements sprang the trusts From sugar to whiskey to beef to tobacco, the process of merger and consolida-tion brought entire industries under the control
of just a few powerful people Oil and steel, the backbone of the nation’s heavy industries, lay in the hands of the corporate giants John D
Rockefeller and J P Morgan The trusts could fix prices at any level If a competitor entered the market, the trusts would sell their goods at a loss until the competitor went out of business, and then they would raise prices again By the 1880s, abuses by the trusts brought demands for reform
History gave only contradictory direction to the reformers Before the eighteenth century,
During a December
1998 news conference
in Washington, D.C., Bill Gates, founder of Microsoft, answers questions, via closed-circuit television, about the antitrust lawsuit filed against the company.
AP IMAGES ANTITRUST LAW 315
Trang 9COMMON LAW concerned itself with contracts, combinations, and conspiracies that resulted in restraint of free trade, but it did little about them English courts generally let restrictive contracts stand because the courts did not consider themselves to be suited to judging adequacy or fairness Over time, courts looked more closely into both the purpose and the effect of any restraint of trade The turning point came in 1711 with the establishment of the basic standard for judging close cases, “the rule of reason.” Courts asked whether the goal
of a contract was a general restraint of competition (a naked restraint) or particularly limited in time and geography (an ancillary restraint) Naked restraints were unreasonable, but ancillary restraints were often acceptable
Exceptions to the rule grew as the economic philosophy of laissez-faire economics (meaning
“let the people do what they please”) spread its doctrine of non-interference in business As rival businesses formed cartels to fix prices and
to control output, the late-eighteenth-century English courts often nodded in approval
By the time the U.S public was complaining about the trusts, common law in U.S courts was somewhat tougher on restraint of trade Yet
it was still contradictory The courts took two
basic views of cartels: tolerant and condemning The first view accepted cartels as long as they did not stop other merchants from entering the market This view used the rule of reason to determine this, and it put a high premium on the freedom to enter into contracts Businesses and contracts mattered Consumers, who suf-fered from price-fixing, were irrelevant; the wisdom of the market would protect them from exploitation The second view was that cartels are thoroughly bad It reserved the rule of reason only for judging more limited ancillary restrictions Given these competing views, which varied from state to state, no compre-hensive common law could be said to exist But one approach was destined to win
The Sherman Act and Early Enforcement
In 1890, Congress took aim at the trusts with passage of the SHERMAN ANTI-TRUST ACT, named for SenatorJOHN SHERMAN (R-Ohio) It went far beyond the common law’s refusal to enforce certain offensive contracts Clearly persuaded by the more restrictive view that saw great harm in restraint of trade, the Sherman Act outlawed trusts altogether The LANDMARK law had two sections Section 1 broadly banned group action
in agreements, forbidding “every contract, combination in the form of trust or otherwise,
or conspiracy,” that restrained interstate or foreign trade Section 2 barred individuals from monopolizing or trying to monopolize Viola-tions of either section were punishable by a maximum fine of $50,000 and up to one year in jail The Sherman Act passed by nearly unani-mous votes in both houses of Congress Although sweeping in its language, the Sherman Act soon revealed its limitations Congress had wanted action even though it did not know what steps to take Historians would later dispute what its precise aims had been, but clearly the lawmakers intended for the courts to play the leading role in promoting competition and attacking monopolization: Judges would make decisions as cases arose, slowly developing a body of opinions that would replace the confusing precedents of state courts For a public that expected overnight change, the process worked all too slowly President Grover Cleveland’s Department of Justice, which disliked the Sherman Act, made little effort to enforce it
Initial setbacks also came from the U.S Supreme Court’s first consideration of the
This political cartoon
depicts President
Theodore Roosevelt
resurrecting the
Sherman Anti-Trust
Act Roosevelt’s
administration filed
44 antitrust lawsuits
in eight years.
316 ANTITRUST LAW
Trang 10statute, in United States v E C Knight Co., 156
U.S 1, 15 S Ct 249, 39 L Ed 325 (1895)
Rejecting a challenge to a sugar trust that
controlled more than 98 percent of the nation’s
sugar-refining capacity, the Court held that
manufacturing was not interstate commerce
This was good news for trusts If manufacturers
were exempt from the Sherman Act, then they
would have little to worry about from federal
antitrust regulators The Court only began
strongly supporting the use of the law in the
late 1890s, starting with cases against railroad
cartels By 1904 some 300 large companies still
controlled nearly 40 percent of the nation’s
manufacturing assets and influenced at least 80
percent of its vital industries
After the turn of the twentieth century,
federal enforcement intensified President
Theodore Roosevelt’s announcement that he
was a “trustbuster” foreshadowed one
impor-tant aspect of the future of antitrust
enforce-ment: It would depend largely on political will
from the Executive Branch of government
Roosevelt and his successor, President WILLIAM
HOWARD TAFT, responded to public criticism over
the rapid merger of even more industries by
pursuing more vigorous legal action Steady
prosecution in the first decade of the twentieth
century brought the downfall of trusts
In 1911 the U.S Supreme Court ordered
the dissolution of the Standard Oil Company
and the American Tobacco Company in
landmark rulings that brought down two of
the most powerful industrial trusts But these
were ambiguous victories In Standard Oil Co of
New Jersey v United States, 221 U.S 1, 31 S Ct
502, 55 L Ed 619, for example, the Court
dissolved the trust into 33 companies, but held
that the Sherman Act outlawed only restraints
that were anticompetitive—subject,
further-more, to a rule of reason Critics of all stripes
jumped on this decision Some feared that
conservative judges would now gut the Sherman
Act; others predicted a return to lax
enforce-ment; and businesses worried that in the
absence of specific unlawful restraints, the rule
of reason gave courts too much freedom to read
the law subjectively
Congressional Reform up to 1950
Dissatisfaction brought new federal laws in
1914 The first of these was the Clayton Act,
which answered the criticism that the Sherman
Act was too general It declared four practices to
be illegal but not criminal: (1) price discrimi-nation—selling a product at different prices
to similarly situated buyers; (2) tying and exclusive-dealing contracts—sales on condition that the buyer stop dealing with the seller’s competitors; (3) corporate mergers—acquisitions
of competing companies; and (4) interlocking directorates—boards of competing companies, with common members
Quick to hedge its bets, the Clayton Act qualified each of these prohibited activities
They were only illegal where the effect“may be substantially to lessen competition” or “might tend to create a monopoly.” This language was intentionally vague Despite specifying different tests for violations, Congress still wanted the courts to make the difficult decisions One important limitation was added: The Clayton Act exempted unions from the scope of antitrust law, refusing to treat human labor as
a commodity
The second piece of federal legislation in
1914 was the Federal Trade Commission Act
Without attaching criminal penalties, the law provided that“unfair methods of competition in
or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce are hereby declared illegal.” This was more than a symbolic attempt to buttress the Sherman Act
The law also created a regulatory agency, the Federal Trade Commission (FTC), to interpret and enforce it Lawmakers who feared judicial hostility to the Sherman Act saw the FTC as a body that would more closely follow their preferences Originally, the commission was designed to issue prospective decrees and to share responsibilities with the Antitrust Division
of the Department of Justice Later court rulings would allow it greater latitude in attacking Sherman Act violations
These laws helped to satisfy the short-term demand for tougher, more explicit action from Congress Before long, antitrust enforcement would shift with the mood of the country As
WORLD WAR Iand the 1920s reversed the outlook
of previous years, antitrust policy was charac-terized by the hands-off policies of President
CALVIN COOLIDGE, who declared, “The chief business of the American people is business.” Economic trends created and supported this attitude; prosperity seemed a worthwhile re-ward In this era, the DOJ gave more attention
to promoting fairness than it did to attacking
ANTITRUST LAW 317