In reviewing the literature on the purpose and administration of the combines and anti-trust legislation for this paper, it became apparent that there were topics very close to the core of the matter which, although they were separately the subject of exhaustive analysis, were rarely brought face to face; nor were the problems involved in their integration fully probed. Recent developments in economic theory and differences of approach on the part of lawyers and economists, to mention only two areas of potential discord, may create issues that are attributed to quite different sources. Neither time nor personal competence will permit a detailed exploration of this important subject. Nevertheless, a brief survey of some of the issues that often lie submerged in our discussions of combines matters may serve as a useful background for the more detailed review that follows.
The difference in the approach of lawyers and economists to the problems of monopoly and restraints of trade was the subject of a recent paper by Dr. Jesse W. Markham, then Acting Director of the Bureau of Industrial Economics of the Federal Trade Commission. Basically, legal and economic disciplines are regarded as being oriented toward different sets of values and sometimes differently toward the same set of values.
Economics [Dr. Markham said] is concerned largely with fundamental social phenomena and with the laws of human behaviour by which man brings order to economic activity. The law, on the other hand, is concerned with formal rules enforceable in the courts. The law, on the other hand, is concerned with formal rules enforceable in the courts. Thus, the economist views the competitive enterprise system as a particular form of economic organization … while the legal mind views it as a set of rights and obligations related to private property, contracts, and other aspects of business as expressed in the formal law. In brief, economics is oriented toward fundamental relationships among men and business firms; while the law is simply the accepted rules of conduct for such relationships.