anything in the nature of a definition of "unfair methods of competition," or to formulate a rule of thumb as to what may safely be done, or must certainly be avoided. under the Trade Law. About all that can be said would seem to be that no competitive practice can be an "unfair method of competition" within the Trade Law, unless the effect of the practice may be to eliminate or substantially to lessen competition, to restrain trade unduly, or to create or perpetuate monopoly, and on the other hand, that any trade method potent to eliminate or substantially to lessen competition, to restrain trade unduly, or to create or perpetuate monopoly may be held an "unfair method of competition" within the Trade Law, if such potentiality of the method be due to anything else than the user's superior industrial efficiency exerted solely through commercial practices of generally conceded propriety.

§ 26. Trade Law and Clayton Law construed together: The construction hereinabove put upon the words "unfair methods of competition" as used in the Trade Law, may perhaps be urged to be too broad. Four trade practices were mentioned in the Standard Oil Company Cases as "unfair methods of competition." Only two of those four practices, namely local price cutting and payment of rebates, were selected by Congress for express description and denunciation in the Clayton Law.88 The Clayton Law was not approved, and did not go into

combination with the ability to crush, and for the purpose of crushing, a weak rival, may become abnormal and unlawful." Per curiam, in United States v. Great Lakes Towing Co. (1913) 208 Fed. 733, 744. "Generally speaking, I think that a business

should not be permitted to develop to such proportions as to unreasonably engross a trade." Hazel J., in United States v. Eastman Kodak Co. (1915) 226 Fed. 62, 77. Cf., note 63, supra.

87 Sec. 15, supra.

88 Secs. 4, 9, 10, 11, 12, supra.

effect, until after the Trade Law.89 From those circumstances, it might perhaps be argued that the legislative intention was, in and by the Clayton Law, to define and limit the meaning of the phrase "unfair methods of competition" as used in the Trade Law, so as to exclude therefrom, and from the regulative power of the Trade Commission, any trade practices affecting competition except those particularly described and specifically declared unlawful by the Clayton Law.

That such will be held to have been the legislative intention seems unlikely, however. If that narrow construction of the Trade Law and the Clayton Law should be adopted, the result of course would be to deprive the words "unfair methods of competition, 99 as used in the Trade Law, of all effect. That result the courts will avoid, if reasonably possible.90 The Trade Law and the Clayton Law are not inconsistent in any degree. The courts will so construe them as to give full force and effect to all of the provisions of each.91

When the Trade Law was upon its passage in Congress, several amendments were offered with a view to defining more or less explicitly the words "unfair methods of competition." But all such amendments were rejected. That circumstance indicates a legislative purpose, by the use of general language, not to limit the application of the regulative powers of the Trade Commission to specified acts, but rather to establish a general standard of conduct, and to leave it to the Trade Commission in the first instance, and to the courts finally,

89 See notes 1 and 11, supra. 90Heydenfeldt v. Daney Gold etc. Co. (1876) 93 U. S. 634, 640; United States v. Ninety-nine Diamonds (1905) 139 Fed. 961, 963964.

91 Ex parte Crow Dog (1883) 109 U. S. 556, 570; Chew Heong v. United States (1884) 112 U. S. 536, 549-550; United States V. Langston (1886) 118 U. S. 389, 393, 394.

to apply that standard to the facts and circumstances of each particular case. Nothing inconsistent with that conclusion can be found in the fact that, in enacting the Clayton Law, Congress saw fit expressly to describe and denounce therein certain particular practices which, if not so specified, probably would have been held, under most circumstances, to be "unfair methods of competition" within the Trade Law. That doubtless was a mere precautionary measure on the part of Congress to guard against the possibility that, under particular circumstances, the competitive methods covered by the Clayton Law might be regarded by the Trade Commission, or the courts, as not so "unfair" as to fall within the operation of the Trade Law. The plain intention of Congress was that the trade practices covered by the Clayton Law should be prevented at all events, and that all other trade practices, which the Trade Commission and the courts might find to be "unfair" in the sense indicated hereinabove,92 should also be prevented. That is the fair interpretation of the Trade Law and the Clayton Law, considered together, and the words "unfair methods of competition," as used in the Trade Law, cannot properly be taken as narrowed in meaning by the Clayton Law.

§ 27. Trade Law does not create a new wrong: Construed as it is hereinabove suggested they should be, the words "unfair methods of competition in commerce" as used in the Trade Law, include little if anything more than the words "attempt to monopolize '93 as used in

92Secs. 15-25, supra.

93"An attempt to monopolize means an attempt to get control of the industry in which the defendant is engaged 'by means which prevent other men from engaging in fair competition with

him.'" Morton J., in United States v. Whiting (1914) 212 Fed. 466, 478 (our italics). "To constitute the offense of monopolizing or attempting to monopolize under the act of Congress, it is necessary to acquire, or attempt

section two of the Sherman Law.94 That such is the correct construction of the phrase "unfair methods of competition," appears persuasively from the provision in the Trade Law that nothing in the said law contained shall be "construed to alter, modify, or repeal''95 the antitrust laws, including of course the Sherman Law. The words "alter" and "modify" are comprehensive. They would seem to be adequate to cover any substantive change whatsoever. And since the Trade Law, so far as it prescribes any rule of conduct in commerce, and the

Sherman Law, are cognate statutes dealing with the same general subject matter, the declaration by Congress that the Trade Law shall not be construed to "alter" or "modify" the antitrust laws, would seem to preclude the possibility of giving effect to the Trade Law as materially adding to, or taking from, the substantive rules of competition in interstate and foreign commerce declared by the Sherman Law.

If any competitive trade practice whatsoever can be an "unfair method of competition" under the Trade Law, and not at the same time an unlawful "attempt to monopolize" under the Sherman Law, that result must arise from the possibility that whereas a monopolistic intent is indispensable to an actionable "attempt to monopolize,''96 it may not be essential to an "unfair method of competition." Such a possible distinction between an "attempt to monopolize" and an "unfair method of competition" would appear, however, to be rather a matter of terms than of substance. It is hardly likely that a competitive method possessing the characteristies necessary to make it "unfair" under the Trade Law, could be practised inadvertently without appreciating its nature and intending its consequences. The word "method" imports system, repetition, and excludes the idea of casual, occasional, haphazard conduct. Circumstances adequate to justify a ruling that any given competitive act was "unfair," and that it was so regularly or systematically performed as to constitute a "method" of competition, within the Trade Law, would no doubt suffice to raise the monopolistic intent essential to make the performance of such act an unlawful "attempt to monopolize" within the Sherman Law.

97

96 Swift & Co. v. United States (1905) 196 U. S. 375, 396, 402.

97 Secs. 15-25, supra.