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This chapter summarizes the book's main arguments. It sketches an overview of an analytical foundation for designing policy toward coordinated price elevation in oligopolistic industries, at the same time arguing for a straightforward approach to the issue. Systematic comparison with a more direct, functional approach reveals conventional means to be inferior and in important respects counterproductive in cases without smoking-gun evidence. In those settings, a direct approach dominates the conventionally favored communications-based prohibition in that the former targets situations that involve both greater social harm and less risk of chilling desirable behavior than those most likely to generate liability under the latter. The direct approach is also less difficult to administer, contrary to conventional wisdom.

This chapter examines how the lower courts confront central legal questions that routinely arise in price-fixing and other horizontal-restraints cases in which the existence of an agreement is in dispute. In light of the discussion in the previous chapters, it is not surprising that the practice in lower courts is difficult to characterize—although some commentators nevertheless depict a substantially harmonious state of affairs. The problem begins with the frequent need to make inferences from circumstantial evidence, which all acknowledge to be necessary. As a consequence of the problem of defining agreement, it is difficult to know what one is trying to infer or how inferences can be made even when evidence of agreement appears to be fairly direct. Various seemingly clear rules, such as the demand for so-called plus factors, are unclear upon examination and cast serious doubt on the conventional view of the law.

This chapter begins by defining conventional prohibition in an operational fashion. As the earlier chapters have shown, this is a daunting task. Most views can be captured by supposing that the price-fixing prohibition is limited to certain sorts of interfirm communication, whether designated by mode, content, or otherwise. This formulation on its face seems problematic because it focuses not on whether the means employed in fact caused harm in a given case but rather on whether one versus another means was employed. Preliminary consideration of social welfare consequences suggests a negative assessment, for the distinction drawn has little relationship to welfare.

The Price Fixing Committee of the War Industries Board started setting the price of copper to be paid by the American government and manufacturers. The price of copper declined, and the Lake mines cut back their production. Inflation and increased labor costs ate into their profitability. The United States market for new copper had declined, and American mines found themselves with excess production capacity. The major copper producers in Arizona, Montana, and Utah took about three years to come to terms with postwar conditions and the 1921 market collapse. For decades, mine superintendents had coped with managing growth. The costs of economic decline were everywhere apparent. But any benefits of sharp contraction of mining were fewer and harder to find. The Copper Country is such a place, and it has been for the last seventy years.

This chapter provides a conclusion regarding various aspects and theories of social market economy implemented in West Germany after the Great Depression. Income generated by the market was not necessarily distributed with social justice or with social conditions acceptable to civilized people. A state's budget redistributed income, and it was important to establish the proper principles of social justice upon which such taxation measures are based, always assuming they were in conformity with the market. The West German economy has been a tremendous advertisement for the blessings of market forces and competition. Even the most determined workers could not satisfy the needs of their fellow citizens effectively without a market-orientated economy. Even though protectionism and the price-fixing of German industrial practice were not abolished completely, they did lose respectability. Anti-cartel and anti-monopolistic policies were more weakly applied, but the propaganda campaign which accompanied them served to inculcate the idea of competition into the political culture of West Germany as something positive. The market worked in a semi-automatic fashion, and required ‘sensible management’ (sinnvolle Bedienung), since the organization of credit and money could not in practice be set up as a self-operating mechanism.

Contrary to common misperceptions, conservatives and libertarians believe that markets need some rules. Drawing on the work of Milton Friedman, Friedrich Hayek, Richard Epstein, and others from the “Chicago School” and “Austrian School” of economics, this chapter shows that most conservatives and libertarians agree markets at the very least need rules against breaching contracts, fraud, and horizontal price fixing. Many if not most class action lawsuits fall into these categories.

This chapter examines the details of former U.S. President Gerald Ford's proposals for reducing inflation developed in coordination with the EPB and his newly created Council on Wage and Price Stability (CWPS). These include laws against price fixing, the imposition of a surtax, a limitation of spending for the fiscal year 1975 to $300, and increasing business investment tax credit. This chapter discusses the Democratic Congress' reactions to Ford's proposals.

This chapter examines a number of examples that demonstrate the manipulation of choice in markets. It notes that the preservation of choice in markets is secured by making them open to newcomers, so that competition is endemic — a basic mechanism for the advancement of the capitalist market economy. It discusses how collaboration with rivals is one solution for those who do not enjoy competition. It then describes cartels as associations which involve either price fixing or market sharing. It evaluates the causes and effects of bad choices and how the rise of the credit industry shadowed and enabled the rise of consumerism. It demonstrates that choices is at times abusive and disadvantageous, rather than a boon. It emphasizes how choice does not always deliver what it claims.

In 1779, Pennsylvanians undertook a bold experiment in economic regulation—forming price-fixing committees to reverse wartime inflation. This chapter analyzes the committees’ structure and the context in which they were created. Winter 1778 saw great political turbulence: the evacuation of Philadelphia, treason trials, and an attempt to rewrite the state constitution. By 1779, defenders of the constitution were using price-fixing committees as a means of defending a Constitutionalist vision of government in which the people held the reins of power and the right to shape that government. Though the committees struggled to establish universal legitimacy, they helped legitimate a robust participatory political culture based upon popular sovereignty. This culture, though, remained turbulent, as in the Fort Wilson Incident of October 1779, in which militiamen surrounded the house of Republican politician James Wilson. This chapter investigates how Constitutionalists defended their vision of political culture even during periods of great upheaval.

Horizontal anticompetitive arrangements law has been marked by major legislative turning points. The prohibition upon group boycotts was first weakened and then abolished. Having been amended on two occasions (1990 and 2001) to restrict its field of operation, the coup de grace was administered in 2017 when s 29 was repealed outright. More regulation of other horizontal anticompetitive arrangements followed Australia’s lead in the steady stream of cases involving collusive understandings that have the purpose, effect, or likely effect of substantially lessening or hindering competition in terms of the key prohibition in s 27. The task of separating collusion by consensus from “conscious parallelism” has not proved easy. Cases involving joint ventures and information sharing have seldom come before the courts. In 2017 the law was remodelled so that “price-fixing” was re-cast as “cartel” activity. The substance did not change for cartels of the price-setting variety; bid rigging, market division, and output restriction arrangements had also been caught under the original 1986 wording. Very recently, cartel conduct has been criminalized.

This chapter describes the development of the Bessemer steel process. In spring 1862, a rail of Bessemer steel was laid down between two abutting iron rails in the Camden yard of the London and Northwestern Railway. Three years later, in May 1865, the first rail manufactured from Bessemer steel in the United States was produced at the North Chicago Rolling Mill. The chapter first provides an overview of steelmaking and metallurgy before discussing the commercial and intellectual development of the Bessemer steel process, along with the use of Bessemer steel in making railroads. It also considers innovations in the production of the Bessemer steel process and the patent controversy sparked by the technology, tariff protection for the process, and the Bessemer Association's price-fixing scheme. The chapter concludes by highlighting the stages involved in the innovating process: the inventive stage, the stage in which the invention is applied by the first entrepreneurs, the stage in which other entrepreneurs and engineers refine and consolidate, and the stage in which still other entrepreneurs take over to expand.

This chapter explores the responses to lack of orders that the warshipbuilders and other naval arms manufacturers undertook after 1926 and the collapse of the Coventry Ordnance Works. These ranged from the predictable (diversification) to the illegal (cartels and price fixing). The role the Admiralty, particularly Chatfield, played in allowing this cartel to operate is also examined.

During the last twenty-five years, we have witnessed a sea of change in the crusade against cartels. There are many reasons to believe that the environment is far less hospitable to firms forming and operating a cartel. Nevertheless, there is still the question for which we have yet to get an answer: Are there fewer cartels? Has the expansion of laws prohibiting collusion and the intensification of enforcement actually reduced the presence of cartels in the global economy? The purpose of this chapter is to put forth some concerns emanating from the lack of an answer, suggest some policies while we wait for an answer, and encourage competition authorities to work with academic scholars to find an answer.

This chapter focuses on the definiteness of the contract. Many contracts for the sale of goods do not say anything about the time and place of delivery or the quality of the goods. However, not all such agreements are invalid for want of ‘definiteness’. Instead, terms designed by law for just this situation are read into the agreement in place of the missing stipulations—for example that the goods are to be delivered ‘within a reasonable time’ or that they should have no ‘concealed defects’. The chapter concludes with a discussion of two special cases: is there a binding contract if an essential term is left open for future determination by the parties or a third party? What about a contract in which the parties have agreed that one party may, at a later date, unilaterally determine the price to be paid by the other party?