Antitrust and regulatory alternatives: how the past points the way to the future

Abstract

Over 2 days in January of 1876 lawyers representing the managers of a grain warehouse in Chicago argued in the US Supreme Court that the Illinois statute under which their clients were convicted violated the US Constitution. The statute required grain warehouse operators to get a license to operate and to charge no more for storing and handling grain than the maximum amount the statute specified. The managers did not have a license and they charged over the statutory maximum. The case was Munn v Illinois, and it took more than a year after the oral argument before the Supreme Court handed down its opinion.1 The Court upheld the statute, deciding that it was within the police powers of the state, and not contrary to either the due process or equal protection clauses of the 14th amendment of the US Constitution. The critical question for the Court was whether the defendants’ private business was ‘affected with a public interest’ or ‘devoted to a public use’.2 To determine that it was, the Court first described the grain business, drawing on the factual description set out in the ‘elaborate brief’ of Munn’s lawyers.