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Vanderbilt Law Review

First Page

399

Abstract

H. R. 11 and S. 11 are modest and simple legislative proposals.'They provide for no change in our antitrust laws prohibiting price discrimination except to limit somewhat the use of the "good faith" defense. The extent of this limitation goes no further than to assist the Act by providing that the "good faith" defense shall not operate as an absolute and complete bar to a proceeding by the Government against the practices of destructive price discrimination: In other words, those discriminations which would have the effect of substantially lessening competition and tending to create a monopoly may not be defended by showing that they were practiced in "good faith."

It appears that those opposing H. R. 11 and S. 11 want to insure legality of price discriminations, even at the cost of lessening competition and creation of monopoly. Actually, they are arguing for those ugly results, with the concession that the ugliness my be covered with the veil of "good faith" meeting of competition. Therefore, the naked issue over whether H. R. 11 and S. 11 should be enacted into law is, like the bill, quite simple. It is this: "Shall we tolerate practices which destroy competition and create monopoly, even when those practices are based upon good intentions?" It should not be difficult for us to resolve that issue, especially in the light of our national anti-monopoly public policy. Certainly, no practice destructive of competition and creative of monopoly can be said to be consonant with our antimonopoly public policy, even though the architect of such practices had some good, though misguided, purposes in mind. For ex-ample, mergers of corporations which destroy competition violate the antimerger law even though based on good intentions and for good purposes. In criminal causes, to be sure, evidence of intent is relevant to the issue. Here, we are not discussing proposals for amending the Criminal Code. Instead, we are discussing legislative proposals out of which only civil actions may arise.

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