Study On U.S. Sherman Act

United States is the first nation to enact antitrust law, which has great influence on antimonopoly law and enforcement of other countries. Promulgated in 1890, "Sherman Antitrust Act" laid the foundation for U.S. anti-trust statute. It is also the world's first anti-monopoly law in the modern sense. It set a good example for subsequent countries in making their own anti-monopoly legislation. Case law, which made by U.S. courts in different historical periods, has been active to help form the landscape of the U.S. antitrust enforcement since 1890. It has been well-developed to interact with political, economical and social changes. Since 1950's, economic theory had been widely introduced to the antitrust enforcement of the United States, and provided a strong technical support to antitrust analysis. Antitrust enforcement tends to be more rational. Promulgation of "The People's Republic of China anti-monopoly law" was a significant event in August 2007, which marked the initial perfection of China's competition law. Pressing task for us is to establish guidelines for both the competition authorities and the enterprises. The effective implementation of anti-monopoly law is based on the consensus of the enforcement agencies and the public on the goals, economic rationality and the function of the anti-monopoly law. Experience of U.S. antitrust will helps to improve our antimonopoly law and enforcement.The thesis is divided into six chapters.Chapter 1 is about the origin of Sherman Act. To further understanding of antitrust jurisprudence, the author reviewed the political and economic background and legal environment that the Sherman act was given birth to, explored some fundamental issues of anti-monopoly law, e.g. its origin, nature and characteristics. Generally speaking, the economic structure changes and economic concentration led by industrialization is the socio-economic basis of the birth of the Sherman Act. Limitations of law dealing with monopoly showed demand of new federal statute. Pressures came from interest group was also the driving forces of the legislation. With the help of case law, vagueness of the statute actually increased its inclusiveness. Sherman Act has different purpose, legal consequences as well as theoretical basis with common law.Chapter 2 is about main contents and enforcement in Sherman Act early stage. In this part, the author introduce the main clauses composing Sherman Act, focus on the different role of case law and statute, explore how to use their interactive mechanism to mitigate the conflict of legal certainty and flexibility.Chapter 3 is about the economic rationality of Sherman Act. The main point of this part is, economic Analysis of Law plays an important role in anti-trust enforcement though it has inevitable limitation. The purpose of this part is to highlight the importance of antitrust economic analysis, clarify the prejudices and misunderstandings of it. Costs -benefit analysis is different from the traditional legal analysis of values or logical inference. It could provide a powerful tool to operation-effect analysis of law and enhance the persuasiveness of anti-trust analysis. However, the explanatory power of economics is not unlimited, economic analysis not a substitute for legal analysis.Chapter 4 is about study on the enforcement of Sherman Act Section2. Section2 is one of the most important substantive norms of Sherman Act. In this part, the author analyzes the evolution of Section2 standards, the current enforcement tendency and the different rule of refusal to deal used by of EU and the U.S..Chapter 5 is about the ideological facts influencing Sherman Act enforcement. The two opposite ideologies namely evolutionism and intentionalism were summarized first, and then the author researches into their impact on Sherman Act interpretation in various historical stages. In common law system, the judges have been given great discretionary power, so court decisions often come with a clear ideological stamp, but judge is also to be trained to respect his professional tradition, Stare decisis, which means respect precedents while having right to overturn them. The two kinds of forces jointly help to keep the balance of legal certainty and flexibility.Chapter 6 is about the main conclusions of this thesis. In this part, research findings of the former five chapters were summarized. Based on Sherman Act, the author worked on some issues with universal significance. They are as follows: Competition theory provides a variety of alternative modes of competition policy. Competition law is an integral part of competition policy. Anti-trust regulators should give priority to economic objectives, but non-economic objectives should not be excluded. The relationship between the state and the market is the primary tension of anti-monopoly policy. Market economy needs both invisible hand and visible hand, and it is important to establish a dynamic adjusting mechanism that could react to the economic and social development. Economic analysis of law has universal instrumental value in antitrust. Together with generalized statutes, case law could help to changing the law gradually.