Question

Explain the philosophy of critics of the Sherman Act.

Answer 1

The Sherman Anti-Trust Act is the fundamental basis of American antitrust legislation. While later laws would expand upon the definition and enforcement of antitrust as a legal concept, the Sherman Act has been the foundation of antitrust law for over one hundred years in the United States.The Sherman Anti-Trust Act is the fundamental basis of American antitrust legislation. While later laws would expand upon the definition and enforcement of antitrust as a legal concept, the Sherman Act has been the foundation of antitrust law for over one hundred years in the United States.
Over that period of time, the definition of and goals of antitrust enforcement by the government has been shaped by statute, Presidents, and the Courts.

It was during then-President Clinton’s administration that the Department of Justice prosecuted Microsoft in U.S. v. Microsoft, as well as formally denying the MCI Sprint telecommunications merger.
The Sherman Act itself consists of seven sections - of those seven, only the first two are considered relevant for present-day antitrust.

Section 1. Trusts, etc., in restraint of trade illegal; penalty

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

Section 2. Monopolizing trade a felony; penalty

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.
Plainly, the Sherman Act criminalizes not only the act of restraint of trade and monopoly, but any attempt, intent, or conspiracy to engage in restraint of trade or monopoly.
One major criticism of the Sherman Act is an unexplained failure to explain key terminology of the act. The Sherman Act does not explicitly define either restraint of trade or monopoly. With these key terms undefined, wide authority is granted de facto to the Government and Courts. Thus, with the goal of clarification in mind, in 1914 the Clayton Antitrust Act was passed.