Vertical Integration and the Sherman Act: the Legal History of an Economic Misconception

VERTICAL INTEGRATION AND THE SHERMAN ACT: THE LEGAL HISTORY OF AN ECONOMIC MISCONCEPTION ROBERT Boxt STHOUGHTHE LAW OF VERTICAL INTEGRATION' has been developing ,yunder the Sherman Act for better than forty years, opinions as to what that law is, and what it has been, are still confused. In part, this confusion reflects the state of the law; in part, it springs from a misreading of the cases. This paper represents an attempt to reorder this area of the antitrust law; it is an attempt to discern a consistent doctrine concerning vertical integration running through the cases, and to evaluate the worth of that doctrine in terms of the purposes of the Sherman Act. The current predominant view of the case law appears to be that prior to 1940 vertical integration had not been attacked as such, and that the Sherman Act does not, and did not, condemn such integration except when it is used to extend monopoly from one level of production to another.2 This paper reaches completely contrary conclusions. First, the recent attacks upon vertical integration are not something new in the law. Rather they are merely a spectacular bringing to fruition of a way of thinking, an attitude, that goes back to the earliest cases. Second, the Sherman Act, "new" or "old," has not condemned vertical integration only where there was monopoly at one level of operation (horizontal monopoly). Where the courts have thought abusive practices traceable to t Research Associate, Antitrust Project, University of Chicago Law School. 1 Vertical integration exists when a firm "transmits from one of its departments to another a good or service which could, without major adaptation, be sold in the market." Adelman, Integration and Antitrust Policy, 63 Harv. L. Rev. 27 (1949). 2Hale, Vertical Integration, 49 Col. L. Rev. 921, 923 (1949), states that it was not until recent times that vertical integration was attacked as such. Similarly, Vertical Forestalling under the Antitrust Laws, 19 Univ. Chi. L. Rev. 583, 584 (1952), states: "Prior to 1940 vertical integration had been condemned under the Sherman Act only where found to be an inte- gral part of horizontal monopoly or where used as a means of extending horizontal control to new levels." Kahn, A Legal and Economic Appraisal of the "New" Sherman and Clayton Acts, 63 Yale L. J. 293, 341 (1954), states: "The 'new' Sherman Act, like the 'old,' condemns vertical integration only when it represents a device for extending monopoly power from one stratum to another." These views run counter to some of the decided cases, which will be discussed later, and also seem to overlook the possibility that the early cases may have developed the rudiments of a law about vertical integration as such-which is all we have even yet- despite the fact that such integration was usually presented to the courts simultaneously with questions of horizontal control. THE UNIVERSITY OF CHICAGO LAW REVIEW [Vol. 22 vertical integration they have condemned the integration on that ground alone. They have also dissolved such integration when they inferred an intent to abuse the power they believed such integration created. Much of the misunderstanding of the law in this area arises from an incorrect interpretation of a number of cases as vertical integration precedent, and from a tendency to discount several cases that are valid precedent. For purposes of exposition, therefore, the relevant cases, as well as those often mistakenly believed relevant, have been arranged into four major groups. In the first group are five early decisions which constitute the only vertical integration precedent of general applicability prior to 1946. These are the first American Tobacco case,3 the Corn Products case,4 the two Reading opinions,5 and the Lehigh Valley decision. Far from approv- ing of vertical integration, these cases disclose disapproval and distrust. Each contains, implicitly at least, a number of basic economic assump- tions; and these cases, with the economics they embody, constitute the precursors of modem vertical integration decisions. The second major group is composed of cases whose erroneous classifica- tion as vertical integration precedent has contributed in large measure to a misconception of the law of the subject. Two subgroups are contained within this second major group. The cases of the first subgroup are those whose facts, in the main, fail to reveal vertical integration: the Winslow case7 Eastman Kodak,8 and the Pullman decision.9 (A minor element of verticality places Eastman Kodak in the next subgroup as well.) The second subgroup comprises those cases in which vertical integration, though present in some degree, is not attacked or discussed in those terms. Eastman Kodak, Union Carbide," and InternationalHarvester" belong here. The third major group includes all of those cases that express approval 3 United States v. American Tobacco Co., 164 Fed. 700 (S.D. N.Y., 1908), rev'd 221 U.S. 106 (1911), 191 Fed. 371 (S.D. N.Y., 1911). 4 United States v. Corn Products Refining Co., 234 Fed. 964 (S.D. N.Y., 1916). 5United States v. Reading Co., 226 U.S. 324 (1912); United States v. Reading Co., 253 U.S. 26 (1920). 6United States v. Lehigh Valley R. Co., 254 U.S. 255 (1920). 7United States v. Winslow, 227 U.S. 202 (1913). 8 United States v. Eastman Kodak Co., 226 Fed. 62 (W.D. N.Y., 1915), 230 Fed. 522 (W.D. N.Y., 1916), appeal dismissed 255 U.S. 578 (1921). 9 United States v. Pullman Co., 50 F. Supp. 123 (E.D. Pa., 1943). 10Alexander Milburn Co. v. Union Carbide & Carbon Corp., 15 F. 2d 678 (C.A. 4th, 1926). "United States v. International Harvester Co., 214 Fed. 987 (D. Minn., 1914), appeal dismissed 248 U.S. 587 (1918); 10 F. 2d 827 (D. Minn., 1926), aff'd 274 U.S. 693 (1927). 1954] VERTICAL INTEGRATION AND THE SHERMAN ACT 159 of vertical integration: United States Steel, 2 StandardOil (1931 merger), 8 Republic Steel,14 and the Alcoa remand. 5 It is the thesis here that these cases constitute a separate category within the class of vertical integration precedent. In each case vertical integration seemed to the court a natural and even necessary form of organization because it was the prevailing pattern of the industry involved. But this fact alone would not have sufficed to invoke judicial approval had it not been for the general absence of abusive practices connected with vertical integration. Therefore, while they concern vertical integration, these cases are limited as precedent to those instances where such integration is the pattern of the industry, and where the power thought to be created by the integration does not seem to have been abused. The cases of the fourth, and last, major group are the modern decisions disapproving in some measure of vertical integration: A & P,16 Yellow Cab I," Paramount,8 ColumbiaSteel, 9 Yellow Cab l ,2 and the Paramount remand. 21 These cases are commonly supposed to have signalled a new trend in vertical integration law. Yet analysis makes it apparent that they are consistent with the five early decisions of the first group, adding, for the most part, only greater explicitness to the ideas expressed in the latter. Clearly, then, the law of vertical integration has not done an about- face since 1940; it has consistently condemned such integration wherever connected with abuses or intent to monopolize. Although the position was subsequently abandoned, the Supreme Court at one time even seemed to consider vertical acquisitions illegal per se. Perhaps a major reason for the confusion in the law (as distinguished from opinions about the law) is the inappropriateness of the concept of vertical integration both for the purposes of the Sherman Act and as an 12 United States v. United States Steel Corp., 223 Fed. 55 (D. N.J., 1915), aff'd 251 U.S. 417 (1920). 13 United States v. Standard Oil Co. of New Jersey, 47 F. 2d 288 (E.D. Mo., 1931). 1 United States v. Republic Steel Corp., 11 F. Supp. 117 (N.D. Ohio, 1935). 15United States v. Aluminum Co. of America, 91 F. Supp. 333 (S.D. N.Y., 1950). 16United States v. New York Great Atlantic & Pacific Tea Co., 67 F. Supp. 626 (E. D. II., 1946), aff'd 173 F. 2d 79 (C.A. 7th, 1949). 1United States v. Yellow Cab Co., 332 U.S. 218 (1947). 18 United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948). 19United States v. Columbia Steel Co., 334 U.S. 495 (1948). 20 United States v. Yellow Cab Co., 338 U.S. 338 (1949). 21United States v. Paramount Pictures, Inc., 85 F. Supp. 881 (S.D. N.Y., 1949). TEE UNIVERSITY OF CHICAGO LAW REVIEW [Vol. 22 analytical tool. This paper therefore concludes with a brief economic analysis of the concept itself, and a suggestion as to its proper future em- ployment in Sherman Act cases. I Early Vertical Integration Cases The early Sherman Act cases on vertical integration are important to- day primarily because the economic conceptions they embedded in the law still persist, shaping and directing the latest decisions. Generally, the early cases betray a belief that vertical integration makes possible, or even probable, a variety of predatory economic practices. The courts believed further that vertical integration creates power which, acting through these abuses, enables a firm to monopolize one or more levels of production. Consequently, the illegality of vertical integration was not dependent upon the presence of horizontal monopoly (which might or might not have been obtained through the misuse of such integration), but was dependent upon the presence of predatory abuses.

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