(1977, pp. 290–92 and 382–91); Porter (1969); Tennant (1950). 165. United States v. American Tobacco Company, 221 U.S. 106 (1911), at 185. 166. Hannah (2006, p. 54).

Notes to Chapter 3 571

167. Cox (1933).

168. Brandeis (1914).

169. Roosevelt (1911, p. 652).

170. Tennant (1984, p. 64).

171. Stevens (1912). The main problem was that capital requirements were low and entry easy,

so that new competitors sprang up whenever the cartel tried to raise prices.

172. Chandler (1977, p. 439).

173. Stevens (1912, p. 479). Confusingly, the principal holding companies all had subtle vari-

ants of the same name, all with “E. I. du Pont” in the title.

174. Chandler and Salsbury (1971, p. 118). The cousins were also beginning to realize that

buying up the competition was a bad strategy when entry at all scales was easy: people were entering the market, they worried, simply in order to be bought up by Du Pont. Indeed, in the years leading up to the antitrust suit, Du Pont’s market share was very slowly declining in all segments except government sales, where they were the sole supplier (Stevens 1912, p. 478).

175. Chandler (1977, p. 442).

176. United States v. DuPont, 188 F. 127, 140 (C.C.D. Del. 1911).

177. Chandler and Salsbury (1971, pp. 288–90).

178. Rauchway (2005).

179. Irwin (2001).

180. Gordon (1999).

181. Mundell (1957) showed that free trade and the mobility of factors of production like

labor are substitutes for one another. Both imports and immigration would benefit poor foreign laborers, but the effects on owners and managers would obviously be different. The point here, though, is that because immigration kept wages lower than they otherwise would have been, a tariff with free immigration, like a regime of cheap imports, would not have created a strong incentive for (biased) technical change to increase labor productivity. All other things equal, the system of organizing production systematically to take advantage of unskilled labor is actu- ally capital saving (Field 1987; Leijonhufvud 1986).

182. Irwin (2003).

183. Wright (1990, p. 665).

184. Wells (1906, p. 250).

185. Although he considers the Imperial Presidency to have started with Franklin not Theo-

dore Roosevelt, Arthur Schlesinger (1973, p. 83) is clear that Theodore was the prototype, in the self-described mold of Jackson and Lincoln. Theodore believed he could take any action he wanted that was not explicitly forbidden by law or the Constitution, and the only check on his behavior should be public opinion. “I have a very definite philosophy about the Presidency,” he wrote to Henry Cabot Lodge in 1908. “I think it should be a very powerful office, and I think the President should be a very strong man who uses without hesitation every power that the position yields; but because of this fact I believe he should be sharply watched by the people [and] held to a strict accountability by them” (Schlesinger 1973, p. 410).

186. Croly (1909, p. 174).

187. Jenks (1900, p. 236). The only specific recommendations were for increased corporate disclosure.

188. Roosevelt (1913, pp. 472–73).

572 Notes to Chapter 3

189. Actually, even Brandeis distinguished good trusts from bad trusts in one case—that of United Shoe Machinery, during the years when he served on its board. His thinking was that although United was a large firm with a near-monopoly in the supply of machinery to make shoes, it supported a large network of small shoe manufacturers (McCraw 1981, p. 45). On this point Brandeis was quite right. Antitrust policy later in the twentieth century would get it tragi- cally wrong (Masten and Snyder 1993). By 1911, Brandeis himself had decided that United was as heinous a monopolist as any other (US Senate 1913). On Brandeis’s complex relationship with United see Urofsky (2009, pp. 310–17).

190. Bruchey (1990, p. 347).

191. Letwin (1954).

192. Herbruck (1929); Letwin (1954).

193. von Halle (1899, pp. 5–6); Freyer (1989). “The popular fear of engrossing and forestalling

may be compared to the popular terrors and suspicions of witchcraft,” wrote Adam Smith ([1776] 1976, IV.v.b.26).

194. Bruchey (1990, p. 347); Hovenkamp (1991, pp. 276–85).

195. Freyer (1989). This is arguably a quite sensible policy. On the one hand, it leans against ordinary cartels, which tend to dissolve of their own accord without third-party enforcement. On the other hand, it doesn’t generate the massive transaction costs and distortions that arise from criminalizing cartel arrangements and other contractual mechanisms of coordination.

196. Keller (1990, p. 29).

197. Letwin (1965, pp. 167–81); Sklar (1988, pp. 127–45).

198. United States v. Trans-Missouri Freight Ass’n 166 U.S. 290 (1897), at 328. This case is also

significant for holding that the Sherman Act applied to railroads even though railroads were also regulated by the Interstate Commerce Act.

199. “In this light, it is not material that the price of an article may be lowered. It is in the power of the combination to raise it, and the result in any event is unfortunate for the country, by depriv- ing it of the services of a large number of small but independent dealers who were familiar with the business and who had spent their lives in it, and who supported themselves and their families from the small profits realized therein. Whether they be able to find other avenues to earn their livelihood is not so material, because it is not for the real prosperity of any country that such changes should occur which result in transferring an independent businessman, the head of his establishment, small though it might be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in, having no voice in shaping the busi- ness policy of the company and bound to obey orders issued by others. Nor is it for the substan- tial interests of the country that any one commodity should be within the

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