Presented by Willard Hurst as part of his course "Introduction to Modern American Legal History" at the University of Wisconsin Law School in 1978. By 1890, the market appeared to become self-destructive. As a result, the government had to intervene to keep the market in existence. The first response assumed threats as unusual and specialized, resulting in rulings such as Munn v. Illinois. The second response (i.e. Sherman Anti-Trust, Clayton) represented a radical re-conception of threats against the competitive system. This re-conception emphasized order in the market, not maintenance of good markets. Legislation during the New Deal increased the ability of the anti-trust division of the Department of Justice. Yet, once the Department of Justice had the capability to prosecute anti-trust violations, no anti-trust movement existed. Hurst discusses three legacies of anti-trust legislation. First, the institutional structure of the legal order affirms the government's responsibility to maintain the competitiveness of the market. Second, positive government action to maintain the competitiveness in the market is the responsibility of the national government. Third, there is an institutional legacy to delegate to the executive and judicial branch to put substantive content into anti-trust law. Hurst then answers the question: what is the substance of anti-trust law? He answers the question with three points: factual and legal impact on the market, market competitiveness, and the illegality of overt price-fixing.
