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Anti-Competition Regulation

Published online by Cambridge University Press:  20 January 2020

Anne Fleming
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Abstract

Looking across the long twentieth century, this article tracks the rise and fall of one form of anti-competition regulation: the certificate of public convenience. Designed to curb “destructive competition” in certain industries, such as transportation and banking, certificate laws prevented firms from entering those industries unless they could convince regulators that they would satisfy an unmet public demand for goods or services. This history highlights how lawmakers used similar techniques in governing infrastructure and finance—two fields that are not often studied together. It also shows that state regulation both prefigured legal change at the federal level and then lagged behind it, suggesting that different dynamics have been in play at each level of governance in devising competition policy over the last century.

Keywords

competitionregulated industriesbankingfinancesmall-sum lendingtransportationfederalismtwentieth centuryUnited States
Type
Research Article
Information
Business History Review , Volume 93 , Issue 4: New Perspectives in Regulatory History , Winter 2019 , pp. 701 - 724
Copyright
Copyright © The President and Fellows of Harvard College 2020

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Footnotes

The author thanks Laura Phillips Sawyer, Herbert Hovenkamp, and an anonymous reviewer for Business History Review for their helpful suggestions that greatly improved this piece.

References

1 Frank Brookes Hubachek and Russell Sage Foundation, Annotations on Small Loan Laws: Based on the Sixth Draft of the Uniform Small Loan Law, Small Loan Series (New York, 1938), 54.

2 The Uniform Law covered only nondepository institutions licensed under the law. It did not cover pawnbrokers, commercial or savings banks, or industrial or Morris Plan banks.

3 Hubachek and Russell Sage Foundation, Annotations on Small Loan Laws, 53.

4 Hubachek and Russell Sage Foundation, 53–54.

5 Frank Brookes Hubachek, “Increased Regulation of Personal Finance” (paper, American Association of Personal Finance Companies 19th Annual Convention, Columbia Libraries, Sept. 1933), 58–59; Hubachek, “The Development of Regulatory Small Loan Laws,” Law and Contemporary Problems 8 (1941): 121.

6 Hubachek, “Increased Regulation,” 57.

7 Gallert, David Jacque, Hilborn, Walter Stern, and May, Geoffrey, Small Loan Legislation: A History of the Regulation of the Business of Lending Small Sums (New York, 1932), 234CrossRefGoogle Scholar.

8 New York Laws of 1914, chap. 369.

9 Hubachek, “Increased Regulation,” 59.

10 Hubachek, “Regulatory Small Loan Laws,” 122. By 1969, thirty-three states had this requirement. Shay, Robert P., “Uniform Consumer Credit Code: An Economist's View,” Cornell Law Review 54 (1969): 512Google Scholar.

11 See, for example, Freyer, Tony, Regulating Big Business: Antitrust in Great Britain and America, 1880–1990 (Cambridge, U.K., 1992)CrossRefGoogle Scholar.

12 See, for example, Laura Phillips Sawyer, American Fair Trade: Proprietary Capitalism, Corporatism, and the “New Competition,” 1890–1940 (Cambridge, U.K., 2018); Gerald Berk, Louis D. Brandeis and the Making of Regulated Competition, 1900–1932, 1st ed. (Cambridge, U.K., 2009); and William Boyd, “Just Price, Public Utility, and the Long History of Economic Regulation in America,” Yale Journal on Regulation 35 (2018): 721–78. On efforts by railroads to prevent “ruinous” competition even earlier, in the 1870s, see Alfred D. Chandler Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, MA, 1977), 133-144.

13 For example, Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American History, 1900–1916 (New York, 1963), 98–108 (meat inspection); Marc T. Law and Sukkoo Kim, “Specialization and Regulation: The Rise of Professionals and the Emergence of Occupational Licensing Regulation,” Journal of Economic History 65, no. 3 (2005): 723–56 (occupational licensing); and Richard Sylla, “Federal Policy, Banking Market Structure, and Capital Mobilization in the United States, 1863–1913,” Journal of Economic History 29, no. 4 (1969): 657–86 (bank capital requirements).

14 See, for example, Herbert Hovenkamp, Enterprise and American Law, 1836–1937 (Cambridge, MA, 1991); and Hovenkamp, “United States Competition Policy in Crisis: 1890–1955,” Minnesota Law Review 94 (2009): 311–67.

15 Work on particular industries discusses entry restrictions as part of the overall regulatory scheme for that market: e.g., Mark H. Rose, Bruce E. Seely, and Paul F. Barrett, The Best Transportation System in the World: Railroads, Trucks, Airlines, and American Public Policy in the Twentieth Century (Columbus, OH, 2006). On present certificate developments, see Timothy Sandefur, “State Competitor's Veto Laws and the Right to Earn a Living: Some Paths to Federal Reform,” Harvard Journal of Law & Public Policy 38 (2015): 1009–72.

16 On occupational licensing, see, among others, Morris M. Kleiner, Licensing Occupations: Ensuring Quality Or Restricting Competition? (Kalamazoo, MI, 2006).

17 Joseph D. Kearney and Thomas W. Merrill, “The Great Transformation of Regulated Industries Law,” Columbia Law Review 98 (1998): 1359n161 (noting that certificates for regulated industries began in the states); William K. Jones, “Origins of the Certificate of Public Convenience and Necessity: Developments in the States, 1870–1920,” Columbia Law Review 79 (1979): 426–516.

18 Morgan Ricks, “Money as Infrastructure,” Columbia Business Law Review 2018, no. 3 (2018): 767 (noting the “kinship” between bank regulation and “infrastructure” regulation that is “seldom recognized in the regulatory literature”).

19 On policymaking at the state level see, for example, Alexander Hertel-Fernandez, “Who Passes Business's ‘Model Bills’? Policy Capacity and Corporate Influence in U.S. State Politics,” Perspectives on Politics 12, no. 3 (2014): 582–602.

20 Jones, “Origins,” 435–36.

21 Jones, 435 (quoting 12 Mass. Bd. of R.R. Comm'rs Ann. Rep. 57 [1881]).

22 Jones, 436 (quoting 15 Mass. Bd. of R.R. Comm'rs Ann. Rep. 30 [1884]).

23 Jones, 438 (citing 1 N.Y. Bd. of R.R. Comm'rs Ann. Rep. 64 [1884]).

24 Jones, 438.

25 “The Railroad Commissioners’ Report,” New York Times, 14 Jan. 1885 (quoting 1885 New York Commissioners report).

26 Jones, “Origins,” 439, 445–46.

27 Jones, 452.

28 Jones, 452–53.

29 Idaho Power & Light Co. v. Blomquist, 141 P. 1083, 1090 (1914). See also Weld v. Gas & Elec. Light Comm'rs, 84 N.E. 101, 102–3 (1908).

30 I. Leo Sharfman, “Commission Regulation of Public Utilities: A Survey of Legislation,” Annals of the American Academy of Political and Social Science 53 (1914): 11.

31 Gregg A. Jarrell, “The Demand for State Regulation of the Electric Utility Industry,” Journal of Law & Economics 21, no. 2 (1978): 293–94; Jones, “Origins,” 453. On New York State, see Robert F. Wesser, Charles Evans Hughes: Politics and Reform in New York, 1905–1910 (Ithaca, 1967), 158–59.

32 Jones, “Origins,” 454–55; Ford Poulton Hall, “Certificates of Convenience and Necessity,” Michigan Law Review 28 (1929): 121n78.

33 Jones, “Origins,” 485.

34 Ford Poulton Hall, State Control of Business through Certificates of Convenience and Necessity (Bloomington, IN, 1947), 21–25.

35 Shirley Donald Southworth, Branch Banking in the United States (New York, 1928), 131; Edwin Stokes, “Public Convenience and Advantage in Applications for New Banks and Branches,” Banking Law Journal 74 (Dec. 1957): 922–23. The state already restricted the entry of new savings banks and trust companies. Stokes, 923n7.

36 Wesser, Charles Evans Hughes, 186–87; “The Bank Commission Report,” New York Times, 30 Dec. 1907, 6; “State Banking Committee Report Suggests Many Changes,” Wall Street Journal, 18 Dec. 1907, 8.

37 Southworth, Branch Banking, 131; New York Laws of 1908, chap. 125

38 Stokes, “Public Convenience,” 923n7.

39 Southworth, Branch Banking, 36–38.

40 Schaake v. Dolley, 118 P. 80, 83–84 (Kan. 1911).

41 John W. Transelle, “The Efficiency of Liberalizing Branch Banking in Indiana,” Indiana Law Review 13 (1980): 800–1.

42 Shay, “Uniform Consumer Credit Code,” 512.

43 Stokes, “Public Convenience,” 921; “Bank Charter, Branching, Holding Company and Merger Laws: Competition Frustrated Notes and Comments,” Yale Law Journal 71, no. 3 (1962): 510–11.

44 Hubachek, “Regulatory Small Loan Laws,” 122.

45 This was true at the federal level as well, e.g., I.C.C. v. Parker, 326 U.S. 60, 65 (1945).

46 Household Finance Corp. v. Gaffney, 90 A.2d 85, 87 (N.J. Super. Ct. App. Div. 1952); James A. Sullivan, “A Statement on the Convenience and Advantage Clause: The Method of Application Used and the Policy Applied in New Jersey,” n.d., folder 190: Consumer Credit Studies, 1944–1951, box 24, Russell Sage Foundation records, Rockefeller Archive Center, Sleepy Hollow, NY.

47 Sullivan, “Statement on Convenience and Advantage.”

48 See, for instance, Family Finance Corp. v. Gough, 76 A.2d 82 (N.J. Super. Ct. App. Div. 1950).

49 Stokes, “Public Convenience,” 929.

50 Jones, “Origins,” 427.

51 See, for example, Egyptian Transp. Sys. v. Louisville & N.R. Co., 152 N.E. 510, 513 (Ill. 1926) (setting aside state commerce commission's grant of certificate to a new bus line to provide service on the grounds that the two existing railroads that served the same route must be given “the first right to furnish” the proposed service); and Sohngen v. Pub. Utilities Comm'n of Ohio, 154 N.E. 734, 735 (Ohio 1926) (affirming state public utility commission's grant of a certificate to an existing bus line to extend its service and simultaneous denial of certificate to new entrants to serve the same route).

52 Hall, State Control of Business, 10.

53 Jones, “Origins,” 501; Hall, “Certificates of Convenience and Necessity,” 108–9.

54 David E. Lilienthal and Irwin S. Rosenbaum, “Motor Carrier Regulation by Certificates of Necessity and Convenience,” Yale Law Journal 36, no. 2 (1926): 164–66.

55 Richard T. Ely, “Natural Monopolies and the Workingman: A Programme of Social Reform,” North American Review 158, no. 448 (1894): 294.

56 Richard T. Ely, “The Telegraph Monopoly,” North American Review 149, no. 392 (1889): 45.

57 Ely, “Natural Monopolies,” 294.

58 Clyde Olin Fisher, “The Small Loans Problem: Connecticut Experience,” American Economic Review 19, no. 2 (1929): 191.

59 Clyde Olin Fisher, “Reply on Small Loans Problem,” American Economic Review 19, no. 4 (1929): 645.

60 Transportation Act of 1920, Pub. L. 66-152, 41 Stat. 456; James C. Roberton, “Administrative Regulation by Conditions in Certificates of Public Convenience and Necessity Recent Development,” Stanford Law Review 21, no. 1 (1968): 192. Roberton notes that Congress ignored the certificate provision and instead debated other aspects of this legislation when deliberating on the bill (p. 192).

61 Ellis W. Hawley, The New Deal and the Problem of Monopoly (Princeton, 1966), 41.

62 Hawley, 40–41. Charles R. Stevenson, The Way Out (New York, 1932), 26–27.

63 Hall, State Control of Business, 9.

64 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

65 Communications Act of 1934, Pub. L. 73-416, 48 Stat. 1064.

66 John J. George, “Federal Motor Carrier Act of 1935,” Cornell Law Quarterly 21, no. 2 (1936): 235–36.

67 Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973.

68 Natural Gas Act of 1938, Pub. L. No. 75-688, 52 Stat. 821.

69 Roberton, “Administrative Regulation,” 192–93.

70 Motor Bus and Motor Truck Operation, 140 I.C.C. 685, 746 (1928); George M. Chandler, “Convenience and Necessity: Motor Carrier Licensing by the Interstate Commerce Commission,” Ohio State Law Journal, no. 3 (1967): 380.

71 Regulation of Transportation Agencies, Second Report of the Federal Coordinator of Transportation, S. Doc. No. 152, 73d Cong., 2d Sess. 23, 24 (1934).

72 Regulation of Transportation Agencies, 28, 30.

73 Daniel R. Fischel, Andrew M. Rosenfield, and Robert S. Stillman, “The Regulation of Banks and Bank Holding Companies,” Virginia Law Review 73 (1987): 302.

74 Shay, “Uniform Consumer Credit Code,” 513.

75 Stokes, “Public Convenience,” 926; Banking Act of 1935, Pub. L. 74-305, 49 Stat. 684; David A. Alhadeff, “A Reconsideration of Restrictions on Bank Entry,” Quarterly Journal of Economics 76, no. 2 (1962): 249.

76 Sam Peltzman, “Entry in Commercial Banking,” Journal of Law & Economics 8 (1965): 12. See also Bank Holding Company Act of 1956, Pub. L. 84-511, 70 Stat. 133.

77 Banking Act of 1935, Hearing Before a Subcommittee of the Senate Committee on Banking and Currency, 74th Cong., 1st sess., 32 (1935) (statement of Leo T. Crowley, chairman of the board, FDIC).

78 Banking Act of 1935, Hearing at 31.

79 M. R. Neifeld, “Economic Aspects of Personal Finance” (paper, American Association of Personal Finance Companies 19th Annual Convention, Columbia Libraries, Sept. 1933), 34.

80 Neifeld, 34.

81 Neifeld, 34.

82 Lochner v. New York, 198 U.S. 45 (1905).

83 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). See also Buck v. Kuykendall, 267 U.S. 307 (1925) (Commerce Clause challenge); and Frost v. Corp. Commission of Okla., 278 U.S. 515 (1929) (equal protection challenge).

84 New State Ice, 285 U.S. at 272.

85 New State Ice, 285 U.S. at 279.

86 New State Ice, 285 U.S. at 279.

87 Bruce Wyman, The Special Law Governing Public Service Corporations, and All Others Engaged in Public Employment (New York, 1911), viii; Thomas P. Hardman, “Public Utilities: I. The Quest for a Concept,” West Virginia Law Quarterly & The Bar 37 (1930): 251 (summarizing Wyman's definition). But, for a list of all of the businesses that fell within the public utility category, see William J. Novak, “The Public Utility Idea and the Origins of Modern Business Regulation,” in Corporations and American Democracy, ed. Naomi R. Lamoreaux and William J. Novak (Cambridge, MA, 2017), 139–76.

88 Charles Wolff Packing Co. v. Court of Indus. Relations of State of Kansas, 262 U.S. 522, 543 (1923). On the effort to define “affected with the public interest,” see Samuel R. Olken, “The Decline of Legal Classicism and the Evolution of New Deal Constitutionalism,” Notre Dame Law Review 89 (2014): 2057–60; Malcolm Rutherford, “The Judicial Control of Business: Walton Hamilton, Antitrust, and Chicago,” Seattle University Law Review 34 (2011): 1391; and Herbert Hovenkamp, “The Political Economy of Substantive Due Process,” Stanford Law Review 40 (1988): 442.

89 Anne Fleming, City of Debtors: A Century of Fringe Finance (Cambridge, MA, 2018), 73.

90 Hall, “Certificates of Convenience and Necessity,” 111.

91 Nebbia v. New York, 291 U.S. 502, 536 (1934).

92 W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).

93 United States v. Carolene Products Co., 304 U.S. 144, 152 (1938).

94 Gough, 76 A.2d at 87; Family Finance Corp. v. Gaffney, 95 A.2d 407, 409 (1953). See also Equitable Loan Soc. v. Bell, 14 A.2d 316 (Pa. 1940); and Kelleher v. Minshull, 119 P.2d 302 (Wash. 1941).

95 Gaffney, 95 A.2d at 409–10. See also Gough, 76 A.2d at 87.

96 Gough, 76 A.2d at 87.

97 Gaffney, 95 A.2d at 411. See also Kelleher, 119 P.2d at 309; Motors Acceptance Corp. v. McLain, 47 N.W.2d 919, 922 (1951).

98 F.C.C. v. RCA Communications Inc., 346 U.S. 86, 91 (1953).

99 RCA, 346 U.S. at 92.

100 RCA, 346 U.S. at 97.

101 Kearney and Merrill, “Great Transformation,” 1328.

102 Kearney and Merrill, 1329.

103 Kearney and Merrill, 1325.

104 Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA, 1984), 259.

105 Alfred E. Kahn, The Economics of Regulation: Principles and Institutions, 2 vols. (New York, 1970); George J. Stigler, “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2, no. 1 (1971): 3–21; McCraw, Prophets of Regulation; Richard H. K. Vietor, “Contrived Competition: Airline Regulation and Deregulation, 1925–1988,” Business History Review 64, no. 1 (1990): 81.

106 Vietor, “Contrived Competition,” 82–83.

107 Hovenkamp, “United States Competition Policy,” 320, 326–30, 341–43.

108 Kahn, Economics of Regulation, 2:220.

109 McCraw, Prophets of Regulation, 263, 269. On the politics of deregulation more generally, see Martha Derthick and Paul J. Quirk, The Politics of Deregulation (Washington, DC, 1985); and Shane Hamilton, “The Populist Appeal of Deregulation: Independent Truckers and the Politics of Free Enterprise, 1935–1980,” Enterprise & Society 10, no. 1 (2009): 137–77.

110 Airline Deregulation Act of 1978, Pub. L. 95-504, 92 Stat. 1705.

111 Kearney and Merrill, “Great Transformation,” 1350n117.

112 Congress also adopted the Natural Gas Policy Act in 1978. Pub. L. 95-621, 92 Stat 3350.

113 Motor Carrier Act of 1980, Pub. L. 96-296, 94 Stat. 793; ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803.

114 ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803.

115 Joseph D. Kearney, “Will the FCC Go the Way of the ICC?,” University of Colorado Law Review 71 (2000): 1171n84; Section 214 Deregulated Entry Requirements and Streamlined Exit Requirements for Domestic Telecommunications Common Carriers, 64 Fed. Reg. 39938-01 (23 July 1999).

116 Section 214 Deregulated Entry Requirements, 64 Fed. Reg. 39938-01.

117 Fischel, Rosenfield, and Stillman, “Regulation of Banks,” 331n85.

118 Act of Feb. 21, 1966, Pub. L. No. 89-356, 80 Stat. 7. See also Act of July 1, 1966, Pub. L. No. 89-485, 80 Stat. 236 (similar standard for banking holding company mergers).

119 Warren L. Dennis, “The Community Reinvestment Act of 1977: Defining Convenience and Needs of the Community,” Banking Law Journal 95 (1978): 693–717.

120 Mehrsa Baradaran, “Banking and the Social Contract,” Notre Dame Law Review 89 (2014): 1339–40.

121 Rules, Policies and Procedures for Corporate Activities; Charter Policy, 45 Fed. Reg. 68605 (15 Oct. 1980). In 1991, Congress officially removed the requirement. Ricks, “Money as Infrastructure,” 820.

122 Arthur E. Wilmarth Jr., “The Transformation of the U.S. Financial Services Industry, 1975–2000: Competition, Consolidation, and Increased Risks,” Illinois Law Review 2002, no. 2 (2002): 250. On recent mergers, see Mitria Wilson, “Protecting the Public's Interests: A Consumer-Focused Reassessment of the Standard for Bank Mergers and Acquisitions,” Banking Law Journal 130 (2013): 350–78. See also Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L. No. 96-221, 94 Stat. 132 (lifting restrictions on interest paid on demand deposits).

123 12 U.S.C. 1816 (FDIC); 12 U.S.C. 1842 (Bank Holding Companies); Michael P. Malloy, Banking Law and Regulation, 2nd ed. (2014, 2019 supp.), § 2.02.

124 Jones, “Origins,” 427–28.

125 “Bank Charter,” 514. For branching standards as of 1985, see Cynthia Young Reisz, “The Future of Shared Automatic Teller Networks in the Wake of Marine Midland Bank: A Call for Federal Legislation,” Vanderbilt Law Review 38 (1985): 1627. New York eliminated convenience and advantage from its branching rules in 1981. New York Laws of 1981, c. 411, § 1; New York Banking Law s. 24, 29 (2018).

126 Lauretta Higgins Wolfson, “State Regulation of Health Facility Planning: The Economic Theory and Political Realities of Certificates of Need,” DePaul Journal of Health Care Law 4, no. 2 (2001): 266.

127 Frank H. Easterbrook, “Antitrust and the Economics of Federalism,” Journal of Law & Economics 26 (1983): 34–35.

128 On competition between the states leading to rollback of regulations on financial institutions, see Fleming, City of Debtors, 229–31.

129 See Dep't of Fin. Institutions v. Wayne Bank & Tr. Co., 385 N.E.2d 482, 484 (Ind. Ct. App. 1978); and First Nat. Bank of Worland v. Fin. Institutions Bd., 616 P.2d 787, 798 (Wyo. 1980).

130 Christian A. Johnson and Tara Rice, “Assessing a Decade of Interstate Bank Branching,” Washington and Lee Law Review 65 (2008): 84–85.

131 Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, Pub. L. No. 103-328, 108 Stat. 2338. States could opt out of Riegle-Neal, but fewer than a dozen did. Johnson and Rice, “Assessing a Decade,” 87.

132 For example, Stigler, “Theory of Economic Regulation.”

133 Sandefur, “State Competitor's Veto Laws,” 1045–46; Sandefur, Timothy, “A Public Convenience and Necessity and Other Conspiracies against Trade: A Case Study from the Missouri Moving Industry,” George Mason University Civil Rights Law Journal 24 (2014): 185Google Scholar; Bruner v. Zawacki, 997 F. Supp. 2d 691 (E.D. Ky. 2014); Munie v. Koster, 4:10CV01096AGF (E.D. Mo.) (dismissed 12 July 2012 as moot).

134 Sandefur, “Public Convenience and Necessity,” 99–100. But see Bruner, 997 F. Supp. 2d at 691. See also Parker v. Brown, 317 U.S. 341 (1943) (shielding firms acting pursuant to a state anti-competition law from federal antitrust enforcement).

135 “Certificate of Need State Laws,” National Conference of State Legislatures (NCSL) website, accessed 23 Jan. 2019, http://www.ncsl.org/research/health/con-certificate-of-need-state-laws.aspx.

136 See also National Commission on Consumer Finance, Consumer Credit in the United States (Washington, DC, 1972), 138.

137 Sartoris, William L., “The Convenience and Advantage Clause in Small-Loan Legislation: Pro and Con,” Business Lawyer 27, no. 1 (1971): 349Google Scholar. For a defense of the convenience and advantage requirement, see Harper, J. Barry, “The Uniform Consumer Credit Code and Freedom of Entry,” Business Lawyer 24, no. 1 (1968): 227–35Google Scholar.

138 Only eleven states ultimately adopted some version of the U3C. N.M. Stat. Ann. § 58-15-5 (West 2018).

139 Ricks, “Money as Infrastructure,” 767.

140 On the importance of studying the role of the states, see Childs, William R., “State Regulators and Pragmatic Federalism in the United States, 1889–1945,” Business History Review 75, no. 4 (2001): 701–38CrossRefGoogle Scholar; and Scheiber, Harry N., “State Law and ‘Industrial Policy’ in American Development, 1790–1987,” California Law Review 75, no. 1 (1987): 415–44CrossRefGoogle Scholar.

141 On this dynamic in consumer credit regulation in the 1960s and 1970s, see Fleming, City of Debtors, 217–18.