The Sherman Antitrust Act is a federal antitrust statute enacted in 1890 and described in these excerpts as still in force. In the episodes surveyed, it is discussed less as a body of doctrine than as a historical event and as an analogy: Ryan Young recounts its origins in late-nineteenth-century anxiety about big business, while Bob Zadek later invokes it as a standard against which government tax coordination can be measured. Neither excerpt quotes the statute’s text, names a provision, or describes a decided case.
Origins and timing
Ryan Young places the Act’s passage at the end of a long period in which monopolies were rare and were understood as government-supported trade organizations, citing the Dutch East India Company as an example. Economists, he says, did not consider such organizations worth studying unless they were propped up by government, on the view that they would simply go away and were not a threat to larger market processes. Antitrust 101 with Ryan Young (2019)
That changed in the nineteenth century with the rise of Standard Oil, Carnegie Steel, big railroads and big banks. Young describes the resulting fear as widespread, and adds a second motive: other companies saw antitrust as a possible and very lucrative regulatory weapon. Beginning in the late 1880s, some states passed their own antitrust laws at the behest of certain special interests, laws that could be used as barriers to entry for new firms or to advantage incumbent firms and protect their privileged position. By 1890, Young says, this sentiment had reached the federal level and produced the Sherman Antitrust Act. Antitrust 101 with Ryan Young (2019)
Bob Zadek frames the same period as a departure from the country’s first hundred years, during which there was no real discussion of big companies selling goods and services, and notes that nothing in the Constitution invites government to use the powers of legislation to affect economic transactions between consenting adults in the marketplace. He asks what the Sherman Act, the Clayton Act and other federal legislation targeted and attempted to do when enacted around the very end of the nineteenth century. Antitrust 101 with Ryan Young (2019)
Bigness as such
Zadek presses the question of why the size of a company should frighten anyone per se, setting aside companies that harm customers and putting aside bad actions and bad actors. Young answers that concentrated power is a terrible thing, and that the American Revolution and the general liberal project of the preceding centuries had been a reaction against absolute centralized authority. That reaction, he says, had largely been encompassed in the political realm, and the late nineteenth century presented the same pattern in the private realm, with people seeing it possibly re-emerging in the form of robber barons. Young states that these fears turned out to be overblown, but that this was what the popular mind was thinking at the time. Antitrust 101 with Ryan Young (2019)
Young also notes that the Act is becoming a big battle, with the environment being pretty restrained at the time of the interview, and that people on both the left and the right are pushing for an antitrust revival, which he expects to be a very important issue over the next several years. Antitrust 101 with Ryan Young (2019)
Antitrust as a test for tax coordination
In a later episode, Zadek invokes antitrust in a different setting. Discussing federal tax dollars exchanged for a promise by states not to compete on the basis of lower taxation, he argues that eliminating taxation eliminates freedom, and that once a monopolistic approach says you cannot compete on price, that is a crime if businesses do it. He states that the arrangement flunks the test of the Sherman and Clayton Antitrust Acts, and that the federal government prohibits the states from competing on the basis of tax policy, which he says removes the freedom of New Yorkers to move to Florida for lower taxation. The New Civil Liberties Movement (2021)
The same episode includes discussion of international tax coordination. Zadek describes an attempt to squeeze out variation so that there will be a uniform minimum tax rate across the world, and says that Janet Yellen is the great sponsor of a provision gaining momentum under which major industrial countries agree not to compete on the basis of lower taxation and to adopt a 15% minimum corporate income tax. He adds that if corporations feel overtaxed in the U.S., they cannot run to Ireland or wherever they might run to avoid taxation, and that if all the states in the world agree to the same, there is no competition. The New Civil Liberties Movement (2021)
Philip Hamburger’s contribution in that episode concerns constitutional litigation rather than antitrust doctrine. He argues that no more legislation is needed, whether from the states or the federal government, but better and more intelligent litigation; that judges have not recognized the way we are governed now, thinking we are still governed as if it were Schoolhouse Rock; and that they need to understand money as a mode of power. He hopes litigators and Americans will challenge conditions on spending as unconstitutional, and notes that his book ends with a checklist for lawyers and their clients. The New Civil Liberties Movement (2021)
Across episodes
The topic appears in two episodes, the 2019 discussion with Ryan Young and the 2021 discussion with Philip Hamburger. The treatment changes register rather than substance: Young supplies the Act’s late-nineteenth-century origins and the popular fear of concentrated private power, while Zadek two years later uses the Sherman and Clayton Acts as a benchmark that government tax coordination flunks. The excerpts show no development of a shared argument between the two guests, and Hamburger does not discuss antitrust.
What the sources do not cover
The excerpts do not quote or paraphrase any provision of the Sherman Act, name any section, or describe the statute’s penalties or enforcement machinery. They name no decided antitrust case and no court’s holding. The Clayton Act is mentioned only in passing, alongside the Sherman Act, without any account of what it added. The excerpts also do not state when the Sherman Act was signed, by whom, or what its relationship is to the state antitrust laws Young describes.