Research On State Anti-trust Law Of The United States During The Second Half Of 19^th Century

The Anti-trust Law of the United States is always a hotly debated topic in the academic community at home and abroad. In particularly, the passage and enforcement of the Antimonopoly Act of the P.R.C. at and from August 1,2008, the new round wave of studying American Anti-trust Law has been in advance in the Chinese academic community, including economic law study circle, international economic study circle and history of legal study circle, with a number of research achievements, which are focused on the varied facets of the Anti-trust Law of the U.S.A. As the above mentioned, it is concluded that those publications mainly involve the studies about the development in the different historical stages and the construction and enforcement of the varieties of the institutions of American Anti-trust Law through analyzing those research achievements by the author. There is the academic blank and virgin to study on the historical development of the State Anti-trust Law in America and the rest of the World, in particularly about the legislation and enforcement of it before the birth of Sherman Act. Upon the above consideration, thus, it is very significant for the author to make more attention on this field as my doctorial research point and accomplish the degree dissertation named "Research on State Anti-trust Law of the United States During the Second Half of 19th Century: Focused on the Statutes and Decision Laws", which will be meaningful both theoretically and practically.This dissertation is composed of the main and appendix. The main could be divided into eight parts, including Introduction, Chapter I:Background of States Anti-trust Law During the Second Half of 19th Century; Chapter II:Contract in Restraint of Trade; Chapter III:Monopolization; Chapter IV:Conspiracy and Combination; Chapter V:Enforcement and Remedy; Chapter VI:Conclusion; Pending Points. The appendix is composed of two parts, the one includes the edited "States Anti-trust Statutes from 1865-1900" by the author, "Sherman Act in 1890" and "The Statutes of Monopolies in England in 1623". The other is the edited "Index of the Anti-trust Cases in the States Court from 1865-1900" and "Index of the Anti-trust Cases in the Federal Supreme Court from 1890-1900" by the author. Upon the special studying topic and the characteristics about the origin of the research resources, the framework of the dissertation is different from the traditional arrangement, which is an innovation to organize this paper in order to make an emphasis on the academic significance and important role of the appendix to be greatly helpful for the author to accomplish the dissertation. In particularly, the academic value of the edited "State Anti-trust Statutes from 1865-1900" is not less than that of the main.2 In addition, the collection of the edited "Index of the Anti-trust Cases in the States Court from 1865-1900" is also important for us to deepen and further studies on the historical development of State Anti-trust Law. As just such, the author design the special framework of the dissertation, which seems that the weight of the appendix is more than the main, however, it is necessary for the author to do so in order to embody the main points and the traits about the pattern of philology studies on history of legal, which focuses on the historical resources to be searched, organized, edited and analyzed.Introduction is composed of the Research Topic, the Research situation, and the Research framework and aims. The author paid more attentions on the discussion about the research situation of this topic at home and abroad has been added in this part. The detailed include two facets as the following:the one is that there are very few achievements involving State Anti-trust Laws of the United States in the academic community in China. The other is that the research situation is much better than that of China with the advent of some important achievements, such as, focused on studying the historical background, case laws, terminology of anti-trust, and the relationship and interaction between the economic theories and legal practices, however, there are relative few achievements on the statutes and the enforcement at the original stage.3 In light of the above analyzed, it illustrates that there are great significance and much difficult in my dissertation.Chapter I is the key of this dissertation. Against the specialized research background, in this part, the author define the meanings of Anti-trust Law, which is the regulatory collection including statutes and decision laws to regulate illegal actions or states such as the contract in restraint of trade, monopolization, conspiracy and combination to injury the business competition, and to offer the remedies and (or) to make sanctions about the above illegality. Upon the before observed, the main points of my dissertation can be composed of the following four parts, which are contract in restraint of trade, monopolization, conspiracy and combination, and remedy and enforcement. In addition, in this chapter, the issues about the situation of the economic development during the Second Half of 19th Century and various of the forms of restraint of trade are explored by the author.In Chapter II, the author analyzes the development of concept of contract in restraint of trade at and from England Common Law to American Common Law, in particularly, exploring the process of the Americanization of the concept. This Chapter can be divided into three sections, which are separately Section I, the Origin of Contract in Restraint of Trade:Discussed from England; Section II, General Contract in Restraint of Trade; Section III, Limited or Partly Contract in Restraint of Trade. In Section I, John Dyer's case in 1415 and Mitchel v. Reynolds in 1711 are discussed at the beginning by the author, further to explore the succession question about American Law from England tradition. Upon the before observed, in following two sections, the author focuses on how to realize the Americanization of contract in restraint of trade in the second half of 19th Century in the states courts in the United States through analyzing the difference of the dealing pattern in the states courts in America from that of England, in particularly, making more attention on affirming the cases involved limited or partly contract in restraint of trade.Chapter III focuses on the process of Americanization of the concept of monopolization in England Common Law and makes an emphasis on the realistic practices and the content of the State Anti-trust Statutes, finally concluding the fundamental meanings and characteristics of monopolization in the United States in this period. This chapter is composed of three sections as following, Section I, Monopolization in England; Section II, Basic Meanings of Monopolization in American Law; Sectionâ…¢, Characteristics and Recognize of Monopolization Under American Law. In Sectionâ… , the author introduce and analyze three old kinds of monopolization in England, which were firstly, Forestalling, Engrossing, Regrating, secondly, The Guild Monopolies, thirdly, National Monopolies by Royal Patent, and further to explore the monopolization type succeeded by America. In Sectionâ…¡, two facets promote the development of the monopolization concept in American Law, which are separately, the one that American monopolization concept succeeded to that of England, the other that American monopolization had been innovated by the state anti-trust statutes due to social and economic development. The transformation of the concept of monopolization in the United States mainly embodied the following two points, the one that the emphasis of enforcement had been transferred from individuals or natural persons to corporations, associations, enterprises or legal persons;4 the other that the application of the concept of monopolization had been modernized through designing the exception regulatory and specialty rule in light of the different characteristics of varied industries during the period. The last section of this chapter shows and construes the main traits of the monopolization under American Law via comparatively analyzing the difference between the concept of monopolization in American Law and that in English Law on static-level, and between the concept of monopolization and that of conspiracy and combination in American Law on dynamic-level. From the former, the author concludes five characteristics of monopolization in American Law; from the latter, three types of the monopolization are defined in the context.Chapterâ…£involves two issues including the transit process of the common law terminology of "conspiracy and combination" from England to America, and the various kinds of it in transformation term and after. This chapter can be divided into two sections, Sectionâ… , Americanization of "Conspiracy and Combination "; Sectionâ…¡, Types and Recognize of "Conspiracy and Combination" in American Law. The author introduce and analyze the famous Gloucester Schoolmaster case in 1410 involved "conspiracy and combination" in England, and further to explore the historical trace of the terminology of "conspiracy and combination" in England Common Law in sub-section in Sectionâ… . Upon the before analyzed, concluding the fundamental meanings of "conspiracy and combination" in American Law were composed of partly understanding on "conspiracy and combination" in English Law and partly transferring to Americanization of "combination" due to industrial development in the United States, such as the transformation of the attitude of states courts to deal with the combination of labors and the scope extended of application of combination terminology. In Sectionâ…¡, the author construes three kinds of combinations in restraint of trade, which were "Gentlemen's Agreement", "Pool" and "Trust", in the process of the Americanization of the terminology of "conspiracy and combination", in particularly making an emphasis on "Trust".The fifth chapter is one of the most innovations in the degree dissertation due to the following two reasons, which are the one that there are very few research resources and referring achievements involved this point compared to the above mentioned three chapters, the other that many research materials are firstly used in this paper, which it is no doubt helpful for others research fellows to deepen the relative studies. This chapter are composed of two sections, which are Sectionâ… , Administrative Agencies and Enforcement Procedure, Sectionâ…¡, Remedy and Punishment. In Sectionâ… , according to the states statutes, the administrative agencies are divided into Attorney General of the States and Attorney of the counties, meanwhile the author construes the basic rights and obligations of the above mentioned agencies, the rule of the allocation of the appropriate money and fine between the agencies through analyzing the states statutes in the first sub-section. In the second sub-section, the author focuses on the enforcement of procedure including the discussion on the nature of the enforcement of procedure, the procedure of states courts, such as the arrangement of jurisdiction, litigation, issue of subpoena and injunction etc., the evidence of the violation of the laws composed of civil evidence such as prima facie and criminal evidence such overt action. In Sectionâ…¡, to a certain extent, the remedy and punishment are the two sides of a coin, as such, the author explores five remedies and punishments, which are The Writ of Quo Warranto, Injunction to Be Issued, Recovery of Damage, Forfeiture of Franchises or (and) Determine (Dissolution) of Corporation's Existence, Either Fine or Imprisonment, or Both.Chapter VI expresses the research conclusions including 1, self-constructing the system of the state antitrust law under the economic background of the Second Half of 19th Century; 2, the cooperation between the Statutes and Case Laws to advance the development of the antitrust law.The last part includes three pending points related to the dissertation topic, however it is not suitable to be a chapter paralleled with the above analyzed chapters, thus, the author names the part as Pending Discussion, which involves the re-exploring the reasons about the birth of Sherman Act, evaluating the relationship and interaction between the Federal Anti-trust Law and the State Anti-trust Law, and constructing the multi-level antimonopoly law system in China:balancing the relationship between the Centralization and the Decentralization.