EDITORIAL

FORENSICS AND LAW

Both of the new courses of talks for members of the Club begun this year have been under way long enough now for something like a fair judgment upon them to be passed. In the Monday night Forum meetings conducted by the expert forum conductor, Mr. Geo. W. Coleman, there is a chance for the discussion of contemporary social problems with a freedom displayed by speakers and questioners not possible on Thursday evenings, owing to traditions which have been established in connection with the entertainments and formal lectures then provided. The Forum speakers are more likely to be either conservative or radical. They cause sharper reactions on the hearers. They provoke more dissent. They flaunt more banners of challenge. Consequently when the audience has its “come back " chance it uses it, not as yet with the avidity of a Ford Hall forum audience, but nevertheless fairly well, considering how lacking in power for offhand debate and discussion (while on his feet) the typical Bostonian has become through generations of listening to sermons and lectures taken "sitting down with no right to challenge or question. Let the same Bostonian sit in a committee room around a table and he is penetrating in inquiry and fluent and apposite in rebuttal.

Here appears one of the marked virtues of the Forum movement as such. It bids fair to hasten a just reappraisal of forensics and debate by a people who once were conspicuous above all freemen for their capacity to express their opinions in the clash of town meeting, public forum, and popular legislature.

The course of lectures being given by some of the leading jurists of Massachusetts and the nation under the patronage and with the cooperation of the Boston Bar Association has supplied quite another element to the intellectual and ethical life of the Club. The issues discussed have been legal but also political and social in many cases. The viewpoints of the teacher of law students and the theorist in law reform, of the officer of justice who has had the nation at his back in executing law, of the high-grade practitioner who deplores and denounces waxing lawlessness in high places and also among the masses, and the comment of the penetrating critic of law that reflects, as he believes, unjustifiable popular distrust of wealth massed for profitable group ends, these have been presented to audiences of lay hearers in language which they could understand. The processes by which the legal mind works, as contrasted with the mind of a popular orator or social prophet, have been revealed to many people who never enter a court room to hear a plea, who never read a law review, and whose only knowledge of the lawyer and his technique as a persuader and reasoner is based on rumor and tradition. Viewed solely from this standpoint, and quite apart from the content of the messages delivered, the course has been educational in that it has showed the working of a highly specialized and much disciplined type of mind when faced with concrete problems of law and social ethics.

As an indication of the disposition of a large and influential profession to forsake a somewhat reserved attitude toward popular movements for political and social education, of which the Forum is a symbol, the proffer of this course to the City Club by the Bar Association is significant. No doubt it is a course that lawyers in other cities will duplicate essentially for other city clubs. This way legitimate strategy lies, for the profession and for the interests it conserves, whether of property or person.

LAW LECTURES FOR BUSINESS MEN

The Entertainment Committee is gratified to announce that, after a series of conferences, an arrangement has been made with the Boston Bar Association for a series of nine lectures to be delivered as regular Club functions. The members of the Club and the members of the Boston Bar Association, with their friends, are invited to attend.

Each lecture will be preceded by a dinner in honor of the speakers of the evening.

No such course of lectures has ever been given in Boston or, so far as we know, in any other city. The Boston Bar Association is to be congratulated on being the first to propose and undertake so valuable a service and on having been able to enlist in it men so conspicuous for character and ability.

While the lectures may properly be called "law lectures," their whole purpose will be defeated unless the subjects are presented in a way to make them readily understood by non-professional hearers. There is no mystery in the law which makes it impossible to present a legal proposition in such a way that it can easily be comprehended by men who have had no legal training. It will be the purpose of all the lecturers to deal in this fashion with the subjects on which they are so well qualified to speak.

The list of dates, subjects and speakers follows:

Thursday evening, February 8.

Henry W. Dunn, Esq., former Dean of Law School, University of Iowa. Introduced by Hon. SAMUEL L. POWERS. Subject: "The Constitution and the Courts."

Wednesday evening, February 28.

Frederick P. Fish, Esq. Introduced by ODIN ROBERTS, Esq. Subject: "Invention and the Patent System of the United States." Thursday evening, March 15.

William G. Thompson, Esq. Introduced by HENRY F. HURlburt, Esq. Subject: "Administration of Law in Massachusetts."

Wednesday evening, March 28.

Hon. Nathan Matthews, LL.D., former Mayor of Boston. Introduced by B. N. JOHNSON, Esq. Subject: "Public Service Company Valuations and Rates."

THE FORUM MEETINGS

Both of the January meetings were held in the Auditorium, and at the second one a score or more stood against the walls to the right and left of the platform, all through the lecture. We have hopelessly outgrown the banquet room where the meetings began, but we still miss its coziness. The members have learned to come early, so that the big hall is filled by the time the speaker is introduced, always very shortly after eight o'clock.

Mayor Lunn didn't give his auditors as much Socialism as they expected. They were eager for a more elemental and theoretical treatment of the topic. He spoke as a man of action, directly from his own interesting and varied experiences. The questions were not as many nor as lively as they were when Dr. Walsh spoke, although one member came with a triple-barreled question all bright and shining and loaded to the muzzle.

Rabbi Wise was the last speaker in January. He peppered the Highbrows" with grape and canister, and "didn't do a thing to some of the "Lowbrows." After a discourse of an hour and twentyfive minutes a thoughtless man might have guessed that the speaker wouldn't have left a friend in the hall. When Dr. Wise had finished, however, the entire audience rose to its feet en masse as a spontaneous expression of its appreciation of the speaker and his message. No other speaker in the course has received this kind of an ovation at the close of his address. Seldom has our platform witnessed such brilliant flashes of wit as punctuated the lecture and question period throughout the entire evening.

FEBRUARY 5 PROF. JOHN A. RYAN, D.D., WASHINGTON, D. C.

Father Ryan never indulges in oratorical pyrotechnics or fervid rhetoric when he handles any one of his many social and industrial topics. His method is more like that of the scientist, and his manner that of a business man. In his handling of the topic. "The Right and Wrong of the Labor Unions," he will amaze the average business man by his wide and thorough knowledge of the subject. This will be a valuable opportunity for those who really want to learn something and for those who want to check up their own thinking with the observations of a past-master in this field of knowledge.

FEBRUARY 19- PROF. EDWARD A. STEINER, GRINNELL, IA.

This is the eighth and last meeting in the series. From the beginning there has been a steadily increasing attendance and interest. Steiner is just the man to put on a fitting climax. He is one of the most attractive platform speakers in the country. His topic is "The Immigrant and Nationalism." We can promise you a treat—something you cannot afford to miss. You will hear an immigrant who is on fire with real patriotism and knows how to set it forth vividly and glowingly. THE FORUM COMMITTEE.

REVIEW OF RECENT EVENTS

THE FEDERAL TRADE COMMISSION AND THE CLAYTON ACT By Gilbert H. Montague, December 28

The Federal Trade Commission Act and the Clayton Act, which Congress enacted in the fall of 1914, probably combine in their various provisions more diverse subjects of business regulation, and are based on more divergent theories of trust legislation, than any body of antitrust laws ever passed at any one time by any English-speaking legislature.

So conflicting and inconsistent, indeed, were the principles and the proposals that claimed place in this legislation, so different were the opinions that had to be conciliated in its passage, and so unsettled were the fundamental premises on which new legislation of any kind could at that time be predicated, that it must always remain a marvel of politics. that anything at all resulted, and that the results were even so much related to each other as they are.

Out of a welter of antitrust agitation and discussion that had wellnigh uninterruptedly held the center of the stage for fifteen years, the Federal Trade Commission Act and the Clayton Act emerged, as completed legislation, in the fall of 1914, unsymmetrical, to be sure, and heterogeneous and uncoördinated, yet less awry, and better related in their various parts, and to each other, and to the Sherman Act, than any one familiar with the length and warmth of the agitation and discussion could reasonably have anticipated.

At the launching of the program which resulted in the enactment of these statutes, President Wilson addressed Congress as follows:

"The business of the country awaits also, has long waited and has suffered because it could not obtain, further and more explicit legislative definition of the policy and meaning of the existing antitrust law. Nothing hampers business like uncertainty. Nothing daunts or discourages it like the necessity to take chances, to run the risk of falling under the condemnation of the law before it can make sure just what the law is. Surely we are sufficiently familiar with the actual processes and methods of monopoly, and of the many hurtful restraints of trade to make definition possible, at any rate up to the limits of what experience has disclosed. These practices, being now abundantly disclosed, can be explicitly and item by item forbidden by statute in such terms as will practically eliminate uncertainty, the law itself and the penalty being made equally plain.

"And the business-men of the country desire something more than that the menace of legal process in these matters be made explicit and intelligible. They desire the advice, the definite guidance and information, which can be supplied by an administrative body, an interstate trade commission.

"The opinion of the country would instantly approve of such a commission. It would not wish to see it empowered to make terms with monopoly or in any sort to assume control of business, as if the Government made itself responsible. It demands such a commission only as an indispensable instrument of information and publicity, as a clearing house for the facts by which both the public mind and the manager of great business undertakings should be guided, and as an instrumentality for doing justice to business where the processes of the courts or the natural forces of correction outside the courts are inadequate to adjust the remedy to the wrong in a way that will meet all the equities and circumstances of the case.'

So numerous and varied were the forces in Congress that converged upon President Wilson's program, and so marked were the changes of

opinion in the administration itself, and in the Congressional committees having charge of the legislation, during the eight months that it was pending, that even this pronouncement by its chief author hardly describes with faithfulness the legislation that eventuated. It does, however, express the aspirations with which the program for this legislation was launched; and in the light of these aspirations I shall proceed directly to those sections of the Clayton Act, particularly entrusted to the Federal Trade Commission for enforcement, in which was attempted this "further and more explicit legislative definition of the policy and meaning of the existing antitrust law."

II

Responsively to the President's recommendation, sections 2, 3, 7 and 8 of the Clayton Act declare unlawful various kinds of price discriminations, "tying contracts," intercorporate stockholdings and interlocking directorships.

Section 2 of the Clayton Act provides that it shall be unlawful or any person to discriminate in price in interstate or foreign commerce between different purchasers of commodities "where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce: Provided, That nothing herein contained shall prevent discrimination in price between purchasers of commodities on account of differences in the grade, quality or quantity of the commodity sold, or that makes only due allowance for difference in the cost of selling or transportation, or discrimination in price in the same or different communities made in good faith to meet competition; And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade."

Many causes contributed to this section.

By 1914, nineteen states had adopted statutes prohibiting price discriminations of one form or another, and most of these statutes had been enacted during the three years immediately preceding the passage of the Clayton Act. In cases arising under the federal and state antitrust acts, predatory price discriminations had repeatedly and specifically been denounced by the courts. In much of the proposed antitrust legislation advocated prior to the enactment of the Clayton Act, specific prohibitions against various kinds of price discrimination had prominent place. So hard, however, was it found to take care of the legitimate exceptions to the general prohibition against price discriminations that the Senate, during the consideration of the Clayton Bill, once voted to drop the section entirely. But the proposal had already gathered too much popular strength, and argument, to the effect that the generic provisions of the Sherman Act and Section 5 of the Federal Trade Commission Act forbidding unfair competition already reached every possible evil of price discrimination, fell on deaf ears. The conference committee having charge of the Clayton Bill, therefore, in deference to a very popular superstition, felt obliged to legislate expressly against price