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Updated: June 6, 2025
Other great causes, involving the same issue, were tried, the question was repeatedly reargued, but the Supreme Court tenaciously adhered to its general principle, that, under the Sherman Act, all restraints of trade, or monopolies, were unlawful, and, therefore, the Court had but two matters before it, first to define a restraint of trade or a monopoly, second to determine whether the particular combination complained of fell within that definition.
Thus, where the defendant retained the plaintiff to be to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. /1/ The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James.
There is the temptation to feel that he can never be wrong; that a question may be reargued, but that he is not going to change his opinion. The possibility is that the judge is a mild sort of bully. But it is not always safe to go on the assumption that being a bully he is also a coward. He may be, but on a trial the odds are too much in his favor.
It was horrible to think that I had provided the weapon, however undesignedly, but I could hardly think otherwise. I suffered unspeakable trouble while I considered and reconsidered whether I should at last dissolve that spell of my childhood and tell Joe all the story. For months afterwards, I every day settled the question finally in the negative, and reopened and reargued it next morning.
Any good lawyer with common sense knows the common law and usage of the people; but no one could tell at the time of its passage what, for instance, the Sherman Act, enacted twenty-three years ago, meant; the twenty-three years have elapsed; the anti-trust law has been before the courts a thousand times, and the best lawyers in the country do not to-day know what it means; and the highest tribunal in the land is so uncertain on the subject that it has ordered the Standard Oil case reargued.
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