American Fair Trade: Proprietary Capitalism, Corporatism, and the 'New Competition,' 1890–1940

Laura  Phillips Sawyer

Book | 2018

American Fair Trade: Proprietary Capitalism, Corporatism, and the 'New Competition,' 1890–1940

Abstract

American Fair Trade explores the contested political and legal meanings of the term fair trade from the late nineteenth century through the New Deal era. This history of American capitalism argues that business associations partnered with regulators to create codes of fair competition that reshaped both public and private regulatory power.

Rather than viewing the history of American capitalism as the unassailable ascent of large-scale corporations and free competition, American Fair Trade argues that trade associations of independent proprietors lobbied and litigated to reshape competition policy to their benefit. At the turn of the twentieth century, this widespread fair trade movement borrowed from progressive law and economics, demonstrating a persistent concern with market fairness—not only fair prices for consumers but also fair competition among businesses. Proponents of fair trade collaborated with regulators to create codes of fair competition and influenced the administrative state’s public-private approach to market regulation. New Deal partnerships in planning borrowed from those efforts to manage competitive markets, yet ultimately discredited the fair trade model by mandating economy-wide trade rules that sharply reduced competition. Laura Phillips Sawyer analyses how these efforts to reconcile the American tradition of a well-regulated society with the legacy of Gilded Age laissez-faire capitalism produced the modern American regulatory state.

Keywords: Economic Systems; Competition; Policy; Fairness; History; Governing Rules, Regulations, and Reforms; United States;

Format: Print

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Phillips Sawyer, Laura. American Fair Trade: Proprietary Capitalism, Corporatism, and the 'New Competition,' 1890–1940. New York: Cambridge University Press, 2018.

Case | HBS Case Collection | November 2018 (Revised October 2019)

Rebuilding Puerto Rico

Laura Alfaro, Laura Phillips Sawyer and Haviland Sheldahl-Thomason

On September 20, 2017, Hurricane Maria swept over Puerto Rico, devastating the island’s infrastructure and agriculture. The natural disaster was layered atop years of mounting financial distress. Before the hurricane, Puerto Rico had accumulated $74 billion in debt and beginning in 2014, the island had withheld debt payments despite the commonwealth’s constitutional guarantee of its general obligation bonds. In turn, the island found itself effectively excluded from capital markets while simultaneously unable to declare bankruptcy in US courts due to its status as a territory. In 2016, the US Congress had intervened, passing the Puerto Rico Oversight, Management, and Economic Stability Act (Promesa), which established an eight-member Oversight Board to manage the island’s fiscal planning and restructure its debts and other fiscal obligations under bankruptcy-like proceedings. Many stakeholders felt hopeful that the Oversight Board could help Governor Ricardo Rosselló enact reforms that would improve public services, eliminate government waste, re-establish creditworthiness, and ultimately, foster economic growth. But, many questions still remained: Was Promesa and the Oversight Board the best method to assist the island in fiscal recovery? Was the Board’s fiscal plan an acceptable approach? Would the island be able to regain access to capital markets and attract investments without allocating funds for its creditors in the near future?

Keywords: Natural Disasters; Financial Crisis; Infrastructure; Borrowing and Debt; Economy; Strategic Planning; Governing Rules, Regulations, and Reforms; Puerto Rico;

Citation:

Alfaro, Laura, Laura Phillips Sawyer, and Haviland Sheldahl-Thomason. "Rebuilding Puerto Rico." Harvard Business School Case 719-018, November 2018. (Revised October 2019.) View Details

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The key pieces of antitrust legislation in the United States—the Sherman Antitrust Act of 1890 and the Clayton Act of 1914—contain broad language that has afforded the courts wide latitude in interpreting and enforcing the law. This article chronicles the judiciary’s shifting interpretations of antitrust law and policy over the past 125 years. It argues that jurists, law enforcement agencies, and private litigants have revised their approaches to antitrust to accommodate economic shocks, technological developments, and predominant economic wisdom. Over time an economic logic that prioritizes lowest consumer prices as a signal of allocative efficiency—known as the consumer welfare standard—has replaced the older political objectives of antitrust, such as protecting independent proprietors or reducing wealth transfers from consumers to producers. However, a new group of progressive activists has again called for revamping antitrust so as to revive enforcement against dominant firms, especially in digital markets, and to refocus attention on the political effects of antitrust law and policy. This shift suggests that antitrust may remain a contested field for scholarly and popular debate.

Scholars have long recognized that the states’ authority to charter corporations bolstered their antitrust powers in ways that were not available to the federal government. But they have also argued that the growth of large-scale enterprises operating in national and even international markets forced states to stop prosecuting monopolistic combinations out of fear of doing serious damage to their domestic economies. Our paper has revised this conventional view by focusing attention on the lawsuits that minority shareholders brought against their own companies in state courts of law and equity, especially suits that challenged the anticompetitive use of voting trusts. Historically judges had been reluctant to intervene in corporations’ internal affairs and had displayed a particular wariness of shareholders’ private actions. By the end of the 19th century, however, they had begun to revise their views and to see shareholders’ private actions as useful checks on economic concentration. Although the balance between judges’ suspicion of and support for shareholders’ activism shifted back and forth over time, the long-run effect was to make devices like voting trusts unsuitable for the purposes of economic concentration.

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American Fair Trade: Proprietary Capitalism, Corporatism, and the 'New Competition,' 1890–1940

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