more debasing because they do not realize it.” She urged women to recognize the inequities they faced and to speak and act for their own freedom. When Anthony died in 1906, women did not yet have the right to vote in presidential elections. When the NINETEENTH AMENDMENT to the U.S. Constitution finally became law in 1920, it was called the Anthony amendment in recognition of her valiant efforts to gain suffrage. Anthony was also honored in 1979 and 1980, w hen the U.S. Mint issued one dollar coins bearing her likeness. She became the first woman to be pictured on a U.S. coin in general circulation. FURTHER READINGS Barry, Kathleen. 1988. Susan B. Anthony: A Biography of a Singular Feminist. New York: New York Univ. Press. Cooper, Ilene. 1984. Susan B. Anthony. New York: Watts. Gurko, Miriam. 1974. The Ladies of Seneca Falls: The Birth of the Woman’s Rights Movement. New York: Macmillan. Wells, Ida B. 1970. Crusade for Justice: The Autobiography of Ida B. Wells. Ed. Alfreda M. Duster. Chicago: Univ. of Chicago Press. CROSS REFERENCES Fifteenth Amendment; Nineteenth Amendment; Stanton, Elizabeth Cady; Temperance Movement; Women’s Rights. ANTI-BALLISTIC-MISSILE TREATY OF 1972 The Anti-Ballistic-Missile Treaty of 1972 (ABM Treaty) limited the numb er of defensive anti- ballistic missile (ABM) systems that the United States and the former Soviet Union could use in preparation for nuclear war (23 UST 3435: TIAS 7503; 944 UNTS 13, U.S. DEPARTMENT OF STATE, Treaties in Force, 1993). Restrictions on ballistic missile defenses (BMDs), military warning systems designed to alert and protec t a nation, composed the bulk of the treaty’s articles. The treaty limited each country’s supply of remote- controlled, long-range nuclear rockets, or intercontinental ballistic missiles (ICBMs). Fol- lowing the breakup of the Soviet Union in 1991, the Russian Federation continued to adhere to the agreement. In 2001, however, the United States announced that it would no longer abide by the pact. On May 26, 1972, at the U.S Soviet summit in Moscow, President RICHARD M. NIXON of the United States and President Leonid Brezhnev of the Soviet Union signed, in conjunction with the Strategic Arms Limitation Talks of 1969–72 (SALT I), the ABM Treaty. The treaty limited each party to two ABM sites, with no more than one hundred ABM launchers and interceptors at each site. One of these sites could protect an ICBM silo deployment area, and the second could protect the national capital. The treaty prohibited the development, testing, or deploy- ment of sea-based, air-based, space-based, or mobile land-based ABM systems. Furthermore, it excluded the transfer or deployment of ABM systems to or in other nations. The 15 articles of the treaty were of unlimited duration and would come up for renewal every five years. The principles of the treaty explicitly reflected the policy of mutual assured destruc- tion (MAD)—the belief that the best way to control nuclear arms is to allow both sides enough power to ensure the destruction of both nations in the event of war. As stated in Article I of the treaty, each side agreed “not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense, and not to deploy ABM systems for defense of an individual region” (Dur ch 1988). Article II defines an ABM system as “a system to counter strategic ballistic missiles or their elements in flight trajectory, currently consist- ing of ABM interceptor missiles ABM launchers [and] ABM radars.” Article III reiterates the ban on ABM deployment, except- ing, for each side, one deployment area around the national capital and one around an ICBM launcher deployment area. This provision was later reduced, in 1974, to just one deployment area for each country, allowing “no more than 100 ABM interceptor missiles at launch sites.” Articles IV to XV outline provi sions for, among other issues, nuclear testing, radar deployment, amendments to the treaty, and the terms of treaty withdrawal. After the ABM Treaty was ratified by the U.S. Congress, legislators refused to authorize funds for building an ABM site outside Washington, D.C. In early 1975, the United States deployed its single permitted system near the Minuteman Fields at Grand Forks Air Force Base in North Dakota. Within a year, however, Congress deactivated the system on the ground that it was not very cost-effective. The Soviets, mean- while, used their ABM deployments to protect Moscow. Despite attempts to follow the principles of SALT I, continued limitations on strategic arms fell apart with the SALT II Treaty of 1979. The GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 308 ANTI-BALLISTIC-MISSILE TREATY OF 1972 U.S. Congress refused to ratify the treaty, which had been signed by Presidents JIMMY CARTER and Leonid Brezhnev. SALT II went on to draw heavy fire in the 1980s from the newly empowered Reagan administration. Whereas the Soviets generally adhered to a strict interpretation of the ABM Treaty, President RONALD REAGAN advocated “peace through strength” and pushed for new WEAPONS pro- grams and policies. Reagan reinterpreted the treaty liberally, putting it to its most serious test. His proposal to render nuclear ballistic missiles ineffective and obsolete, with the Strategic Defense Initiative (SDI), a space-based BMD system popularly known as Star Wars, caused great debate at home and considerable alarm in the Soviet Union. Like Reagan, opponents of the ABM Treaty believed that its limits were based on one-way accommodation, that is, allowing the Soviets to retain their numerical superiority, as seen in SALT II. The Soviets had previously established numerical superiority in ICBM deployment, and the ABM Treaty supposedly held back the development of further U.S. weapons technology. Especially troublesome to some was the Soviet’s Krasnoyarsk radar system in western Siberia. According to Article VI of the ABM Treaty, an early-warning radar with this orienta- tion should have been located on the Pacific coast or in the outer Arctic reaches of Siberia. Many believed that Moscow was cheating on its end of the deal, and thus that the treaty should go. In the 1980s tensions between the United States and the Soviet Union flared. In October 1985 the Reagan administration announced a new interpretation of the ABM Treaty, under which the development and testing of “exotic” ABM systems (those not spelled out in the treaty itself, e.g., Star Wars) would have no limit. In 1986, with the Strategic Arms Reduc- tion Treaty (START) talks in full swing, the United States and the Soviet Union treated the ABM Treaty as a central bargaining chip. Moscow looked to maintain the treaty for at least another decade, with tight constraints on space testing. Washington, meanwhile, looked to abide by the treaty for, at most, another decade and expected lessened constraints on the space testing of exotic technologies. U.S. President Richard Nixon and Soviet President Leonid Brezhnev sign the Anti-Ballistic- Missile Treaty in Moscow on May 26, 1972. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ANTI-BALLISTIC-MISSILE TREATY OF 1972 309 The ensuing events of the late 1980s and early 1990s caught everyone by surprise. Although the United States’ interest in the SDI continued into the George H. W. Bush administration years, and persisted through the eventual breakup of the Soviet Union, both the United States and the Soviet Union showed interest in pursuing at least the spirit of the ABM Treaty. True arms-reduction talks devel- oped with the Soviet demise. In 1991 Soviet nuclear forces were split up among four countries—Russia, Ukraine, Belarus, and Kazakhstan—and spokespersons on both sides saw revision of the ABM Treaty as necessary. The START agreements of 1992 shed new light on older concessions. As the chief U.S. architect of the original ABM Treaty, HENRY KISSINGER now joined others in declaring it obsolete in the new era of disarmament. As a gesture of GOOD FAITH, the Soviets demolished their controversial Krasnoyarsk radar system; a shoe factory now occupies the site. In the years that followed, the United States and Russia both worked together and strayed from the MAD doctrine. They also turned their attention elsewhere, mainly to the developing world. New nations on the list of nuclear powers included Israel, India, Pakistan, Algeria, Egypt, Iran, Iraq, Libya, North Korea, and Syria, none of which had any formal attachment to the ABM Treaty. U.S. and former Soviet strategists went from analyzing BMD research provisions set forth in the ABM Treaty to setting up safeguards against attack from other powers. In December 2001, however, the United States announced that it would no longer follow the ABM treaty. The withdrawal came after months of failed negotiations with Russia to jointly abandon the ABM treaty and to craft a new pact based on the current world situation. The formal announcement by President GEORGE W . BUSH set in motion a six-month period for ending the pact. He stated that the ABM Treaty “hinders our government’s ability to develop ways to protect our people from future terrorist or rogue state missile attacks.” On June 13, 2002, the United States officially withdrew from the ABM Treaty. In response to the United States withdrawal, the following day Russia announced that it would no longer be bound by the START II Strategic Arms Reduction Treaty that was signed by both President GEORGE H.W. BUSH and Russian President Boris Yeltsin on January 3, 1993. However, Russia’s decision to pull out from START II had no real impact, as the terms of that treaty had been superseded by the Strategic Offensive Reductions Treaty (SORT). SORT was entered into by President George W. Bush and Russian President Vladimir Putin on May 24, 2002, and was ratified on June 1, 2003. Under that treaty, both countries agreed to reduce their strategic nuclear warheads by 2012. Although Putin expressed regret at the United States’ decision to withdraw from the ABM Treaty, he did not signal a move to build a competing system. Putin was not the only person to express regret. President George W. Bush’s decision to withdraw from the ABM Treaty was met with criticism by members of the United States House of Representatives. Thirty-two members of the House of Representatives, led by Ohio Representative Dennis Kucinich, filed a lawsuit against President George W. Bush, charging that he did not have the authority to unilaterally withdraw the United States from the ABM treaty without congressional approval. The district court dismissed the case and ruled that the members of the House of Representatives did not have any standing to challenge President Bush’s decision, because they were not person- ally injured by the president’s act, and because the issue of a treaty termination is a “political question” that cannot be resolved by the courts. The Bush administration made it clear that the United States’ withdrawal from the treaty was motivated by the desire to build and deploy a long-range missile defense system that would protect the nation from attacks by rogue nations such as North Korea and Iran. The deployment of the missile shield system was set for 2004 and was planned to have a missile radar system placed in the Czech Republic as well as 10 long- range missile interceptors in Poland. On September 17, 2009, however, President Barack Obama’s administration announced that it was eliminating the original plans of the Bush Administration’s long-range missile defense system to implement a system that favors more flexible, short-range systems that will counter potential short- or mid-range European missile THREATS from Iran. FURTHER READINGS American-Soviet Treaty on the Limitation of Anti-Ballistic Missile Systems. May 26, 1972. Moscow. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 310 ANTI-BALLISTIC-MISSILE TREATY OF 1972 Assembly of Western European Union. 1993. Anti-Missile Defence for Europe, Symposium, Rome, April 20–21. Blackwill, Robert D., and Albert Carnesale, eds. 1993. New Nuclear Nations. New York: Council on Foreign Relations. Boese, Wade. “U.S. Withdraws from ABM Treaty; Global Response Muted.” Arms Control Association. Available online at http:// www.armscontrol.org/print/1071 web- site home page: http://www.armscontrol.org (accessed September 24, 2009). Durch, William J. 1988. The ABM Treaty and Western Security. Cambridge, Mass.: Ballinger. ———. 1987. The Future of the ABM Treaty. London: International Institute for Strategic Studies. Greenville, J.A.S., and Bernard Wasserstein. 1987. The Major International Treaties Since 1945. London: Methuen. Joint Chiefs of Staff. 1994. Doctrine for Joint Theater Missile Defense. Joint pub. no. 3-01.5, March 30. “Judge Allows Bush’s Withdrawal from ABM Treaty to Stand: Leaves Open Possibility of Future Congressional Role in Treaty Termination.” Lawyers Committee on Nuclear Policy. Available online at http://lcnp.org/ disarmament/ABMlawsuit/ABMdecisionpr.pdf website home page: http://www.lcnp.org (accessed September 24, 2009). Kartchner, Kerry M. 1992. Negotiating START. New Brunswick, N.J., and London: Transaction. Martinez, Luis, Raddatz, Martha, Compton, Ann. Septem- ber 17, 2009. “Obama: New European Missile Plan will Strengthen U.S. Defenses.” ABCNews.com. Available online at http://abcnews.go.com/print?id=8599260. Website home page: http://abcnews.go.com (accessed September 24, 2009). Mazarr, Michael J., and Alexander T. Lennon, eds., 1994. Toward a Nuclear Peace. New York: St. Martin’s Press. Perez-Rivas, Manuel. December 14, 2001. “U.S. Quits ABM Treaty.” CNN.com: Inside Politics. Available online at www.cnn.com/2001/ALLPOLITICS/12/13/rec.bush. abm/index.html (accessed May 30, 2003). Voas, Jeanette. 1990. Soviet Attitudes towards Ballistic Missile Defence and the ABM Treaty. London: International Institute for Strategic Studies. CROSS REFERENCES Arms Control and Disarmament; Bush, George Herbert Walker; International Law ANTI-DEFAMATION LEAGUE The Anti-Defamation League (ADL) is an agency of B’snai B’srith, an international Jewish service organization. The ADL combats anti-Semitism, religious and racial intolerance, and all forms of organized discrimination based on stereotypical beliefs. The ADL also is a strong advocate of the state of Israel, LOBBYING Congress in support of legislation that benefits the Jewish State. It has its headquarters in New York City and has regional and satellite offices throughout the United States. The ADL also has offices in Jerusalem and Vienna. Sigmound Livingston founded the ADL in 1913 with the support of B’snai B’srith. Livingston, a Chicago attorney, stated that the mission of the league was “to stop, by appeals to reason and conscience, and if necessary, by appeals to law, the DEFAMATION of the Jewish people to secure justice and fair treatment to all citizens alike [and] put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.” The ADL first gained recognition by taking steps to eradicate negative stereotypes of Jews in print and their stereotyping on stage and in film. By the early 1920s, objectionable refer- ences to Jews in the national press had virtually disappeared. However, popular culture was filled with negative stereotypes of Jews. The rise of the KU KLUX KLAN in the 1920s was based as much on anti-Semitism as racial intole rance. The ADL responded by circulating pamphlets that challenged hatred of Jews and demanded apologies from prominent citizens, such as automobile manufacturer Henry Ford, for endorsing anti-Semitic view s. With the rise of Nazism in the 1930s, the ADL fought U.S. supporters of Hitler who endorsed his anti-Semitic policies. During this decade,theADL began to collect information on extremist indivi- duals and organizations and to monitor and investigate fascist groups in the United States. These fact-finding and monitoring activities have remained a central part of the ADL’s work. Since the 1940s, the ADL has lobbied for CIVIL RIGHTS legislation, filed briefs in courts supporting the SEPARATION of church and state, and educated succeeding generations in reli- gious tolerance. Since the creation of Israel in 1948, the ADL has also de fended Israel’s right to exist and has fought against anti-Zionism. In the 1990s, the organization began monitoring the INTERNET for evidence of anti-Semitism and right-wing extremism. In 2000 the ADL issued a report titled “Combating Extremism in Cyber- space,” a review of legal issues raised by hate groups using the Internet. The ADL’s monitor- ing of the Internet and other forms of communication took on new urgency in light of the events surrounding the SEPTEMBER 11TH ATTACKS of 2001 on the United States. In addition to the many other issues concerning the ADL including school vouchers and Presi- dent George W. Bush’s “Faith Based Initiative” to allow certain charities to receive federal funds, the ADL Internet site features a “Terror- ism Update.” The ADL has also created a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ANTI-DEFAMATION LEAGUE 311 handbook with suggestions for keeping Jewish institutions safe from terrorist attacks. The ADL is divided into numerous groups and departments. The Civil Rights Division is the most prominent wing of the organization, as it has investigated and exposed anti-Semitism and bigotry. The division’s research department has become a central source of information on organized bigotry, collecting and analyzing racist, anti-Semitic, terrorist, and extremist literature. The department issues an annual Audit of Anti-Semitic Incidents that serves as a reliable measurement tool of anti-Semitic trends. The Civil Rights Division’s fact-finding department uses investigative journalists to track the activities of extremist groups. For example, this department tracked neo-Nazi skinhead activity in 33 countries and issued the first major survey on this movement. The Civil Rights Division’s legal affairs department serves as the ADL’s advocate in court and before legislatures. The department’s attorneys file briefs, analyze proposed bills and regulations, draft model laws, and prepare TESTIMONY and legal reports for ADL staff. The department’s model hate crimes law has been adopted by almost four-fifths of the states and has been upheld as constitutional by the U.S. Supreme Court in State v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L.Ed.2d 436 (1993). In addition, the department works with local attorneys in the ADL’s thirty regional offices. The ADL’s Braun Holocaust Institute, estab- lished in 1977, serves as a centralized information center on the Holocaust. The institute encourages public and religious schools to teach about the Holocaust by providing curricula for elementary and high school students. It has also organized teacher-training workshops and semi- nars to help teachers incorporate Holocaust studies into mainstream disciplines. The insti- tute’s collection of Holocaust-related materials is recognized as one of the best in the world. In addition, the institute publishes Dimensions: A Journal of Holocaust Studies, a general interest magazine on the Holocaust, and resource guides, catalogs, and background primers. The Government and National Affairs Office in Washington, D.C., serves as the ADL’s lobbyist, promoting the legislative agenda of the organization. The office worked with Congress to establish a congressional task force against anti- Semitism. The ADL has also led a broad coalition of civil rights, religious, and law enforcement groups in support of federal HATE CRIME initiatives. In addition, the ADL has fought against federal school voucher programs and has sought to increase workplace protection for employees who wish to observe their religious duties. The ADL’s commitment to the state of Isra el includes maintaining an office in Jerusalem. This office provides information on current issues to ADL staff and members, and it communicates the U.S. Jewish community’s concerns to the Israeli government. The Jerusalem office also intro- duces visiting Americans, such as government officials and journalists, to the people and politics of Israel. The ADL has endorsed the need for a just peace between Israelis and Palestinians but has been an adamant defender of Israel and opponent of TERRORISM. FURTHER READINGS Anti-Defamation League Web site. Available online at http:// www.adl.org (accessed July 4, 2009). Levin, Jack, and Jack McDevitt. 2002. Hate Crimes Revisited. New York: Westview. Stern-Larosa, Caryl, and Ellen Hoffheimer-Bettmann. 2001. Anti-Defamation League’s Hate Hurts: How Children Learn and Unlearn Prejudice. New York: Scholastic. CROSS REFERENCES Hate Crime; Hate Crime: “Do Hate Crime Laws Restrict First Amendment Rights ?” (In Focus); Libel and Slander. ANTICIPATION The performance of an act or obligation before it is legally due. In patent law, the publication of the existence of an invention that has already been patented or has a patent pending, which are grounds for denying a patent to an invention that has substantially the same structure and function as the earlier invention. In the law of NEGLIGENCE, anticipation refers to the knowledge that there is a reasonable proba- bility that the consequences of particular conduct of one individual will result in injury to others. The anticipation of an invention also occurs if the later invention is merely an ADAPTATION of an earlier patent, which would be obvious to a skilled person who need only exercise some mechanical skill to develop the same adaptation. ANTICIPATORY REPUDIATION The unjustifiable denial by a party to a contract of any intention to perform contra ctual duties, which occurs prior to the time performance is due. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 312 ANTICIPATION This form of breach, also known as anticipatory breach of contract, occurs when one party positively states that he or she will not substantially perform a contract. The mere assertion that the party is encountering difficul- ties in preparing to perform, is dissatisfied with the bargain, or is otherwise uncertain whether performance will be rendered when due is insufficient to constitute a REPUDIATION. Another type of anticipatory breach consists of any VOLUNTARY ACT by a party that destroys, or seriously impairs, that party’s ability to perform the contract. The remedies available to the nonrepudiat- ing party upon an anticipatory repudiation entail certain obligations. If the nonrepudiating party chooses to ignore the repudiation and proceeds with his or her performance, the duty to mitigate damages—which imposes on the injured party an obligation to exercise reason- able effort to minimize losses—mandates that the nonrepudiating party not perform if the consequence of performance would be to increase the damag es. In addition, this duty requires, where applicable, the procurement of a substitute performance. If the nonrepudiating party implores or insists that the other party perform, this demand, in and of itself, does not divest the nonrepudiating party’s right to damages. The presence or absence of a breach of contract depends solely upon the repudiating party’s actions. The prevailing view is that the non- repudiating party may pursue any remed y for breach of contract, even though he or she has informed the repudiating party that he would await the latter’s performance. The nonrepudiating party also possesses the option to do nothing and to commence an action for breach after the time for perfor- mance. Under the majority view, such an action can be instituted without tendering the non- repudiating party’s performance or even al leg- ing or proving that the party was ready, willing, and able to perform. The nonrepudiating party must demonstrate, however, that he or she would have been ready, willing, and able to perform but for the repudiation. In regard to the law of sales, the UNIFORM COMMERCIAL CODE (UCC), a body of law govern- ing commercial transactions by the states, provides that anticipatory repudiation entails the right of one party to a contract to sue for breach before the performance date when the other party communicates the intention not to perform. The repudiation can, however, be retracted before the performance date if the nonrepudiating party has not acted on the basis of the repudiation. Some jurisdictions direct the injured party to await the performance date before instituting an action. ANTILAWYER MOVEMENT Throughout early U.S. history, legal practi- tioners were the subject of ambivalence on the part of the general public. The attitude against lawyers reached its peak after the Revolutionary War and remain ed hostile until the beginning of the nineteenth century. During the early days of the colonies, the system for the administration of justice was based on arbitration and religious principles, and lawyers specially educated and skilled in the law were presumably not needed and were often restricted or prohibited from practicing. Judges were ordinary men who used unpolished methods of questioning to determine t he facts of each case; defendants were their own lawyers. This system remained successful as long as the population of each community remained small and manageable, and the people were clear about their rights and obligations to their neighbors and the community. By the end of the seventeenth century, the colonies experienced a period of growth, and the original judicial system became unsatisfac- tory. Formal PLEADING and skilled lawyers began to replace the primitive methods of earlier colonial times. After the Revolutionary War, Americans sought a new form of jurisprudence to interact with their newly gained freedoms. Laws were less confining, due to the belief that moral fiber was more important to satisfactory conduct than legislation. During this period, the antilawyer move- ment gained momentum. Historians speculate that it evolved as a result of former prejudices and conflicts toward the legal profession. Although lawyers in the past had not been viewed favorably, they achieved prominence and esteem as strong proponents of freedom from England during the Revolutionary War. After the war, lawyers were once again an important part of the legal system but were used GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ANTILAWYER MOVEMENT 313 primarily by the wealthy. As a result, they were often in conflict with those who were poor and could not pay their debts, which led to a resurrection of the old negative attitudes against them. Lawyers were regarded with suspicion. They were accused of initiating unnecessary lawsuits, impeding the justice system, and prolonging trials to secure additional fees from unsuspect- ing clients. They were also criticized for the use of legal jargon, causing simple matters to seem complicated. Despite these attacks, lawyers managed to attain poli tical power. They were regarded as conspirators, however, for people could not accept the idea that lawyers who served as politicians made the laws by which they secured a living as legal practitioners. It was also feared that law yers, judges, and legislators would band together to control society, depriving the common people of some of their hard-won freedoms. Although the fears were exaggerated, they were true to some degree, for lawyers did earn a living from the ramifications that legislation had upon the general public. Two remedies were recommended to rec- oncile the proponents of the antilawyer senti- ment and lawyers. The first suggestion was an updated version of the early colonial justice system, which prohibited lawyers from practic- ing. A judge representing the interests of the community would preside over the court and instruct the jury. Judges were educated aristo- crats who could be impeached if their conduct so warranted. If a LEGAL REPRESENTATIVE was deemed necessary, a friend of the DEFENDANT could participate in the arbitration. The second suggestion provided for a small group of professional lawyers to practice as public servants. Their salaries and actions would be controlled by the state, and their chief function would be to clarify legal principles of each case for the jury. The conflicting feelings toward lawyers culminated in several incidents, the most noteworthy of which was known as Shays’s Rebellion. The rebellion began in 1786 when Massachusetts voters elected a majority of nonlawyers to the General Court. This action led to a RIOT, and hostile agrarian mobs overran the courthouses, closing them down. The governor dispatched the state army, which successfully quelled the agitators. Shays’s Rebellion did not stop the people of Massachusetts from electing lawyers to political positions. The very tactics they feared in the courtroom were highly desirable in politics to control government officials; in spite of their conflicting feelings, voters were still attracted to legal skills. The new methods of justice proved to be inefficient. Arbitration was fruitless, and laymen were fallible as lawyers. By 1790, most cases were again tried by lawyers, and the antilawyer movement began to wane. CROSS REFERENCE Shays’s Rebellion. ANTINOMY An expression in law and logic to indicate that two authorities, laws, or propositions are inconsistent with each other. A wood engraving from an 1884 Harper’s Monthly shows Daniel Shays and his comrades occupying a Massachusetts courthouse to prevent the court from directing legal action at debt-ridden farmers in 1786. BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 314 ANTINOMY ANTITRUST LAW Antitrust law refers to legislation enacted by the federal and various state governments to regulate trade and commerce by preventing unlawful restraints, price-fixing, and monopolies; to pro- mote competition; and to encourage the produc- tion of quality goods and services at the lowest prices, with the primary goal of safeguarding public welfare by ensuring that consu mer demands will be met by the manufacture and sale of goods at reasonable prices. Antitrust law seeks to make enterprises compete fairly. It has had a serious effect on business practices and the organization of U.S. industry. Based on the belief that free trade benefits the economy, businesses, and consu- mers alike, the law forbids several types of RESTRAINT OF TRADE and monopolization. These fall into four main areas: agreements between or among competitors, contractual arrangements between sellers and buyers, the pursuit or maintenance of monopoly power, and mergers. The Sherman Anti-Trust Act of 1890 (15 U.S.C.A. § 1 et seq.) is the basis for U.S. antitrust law, and many states have modeled their own statutes upon it. As weaknesses in the Sherman Act became evident, Congress added amendments to it at various times through 1950. The most important are the CLAYTON ACT of 1914 (15 U.S.C.A. § 12 et seq.) and the ROBINSON-PATMAN ACT of 1936 (15 U.S.C.A. § 13 et seq.). Congress also created a regulatory agency to administrate and enforce the law, under the FEDERAL TRADE COMMISSION Act of 1914 (15 U.S.C.A. §§ 41–58). In an ongoing analysis influenced by economic, intellectual, and polit- ical changes, the U.S. Supreme Court has played the leading role in shaping the ways in which these laws are applied. Enforcement of antitrust law depends largely on two agencies: the Federal Trade Commission (FTC), which may issue cease-and-desist orders to violators, and the Antitrust Division of the U.S. DEPARTMENT OF JUSTICE (DOJ), which can litigate. Private parties may also bring civil suits. Violations of the Sherman Act are felonies carrying fines of up to $10 million for corporations, and fines of up to $350,000 and prison sentence s of up to three years for persons. The federal government, states, and individuals may collect treble (i.e., triple) the amount of damages that they have suffered as a result of injuries. Origins Antitrust law originated in reaction to a public outcry over trusts, which were late-nineteenth- century corporate monopolies that dominated U.S. manufacturing and mining. Trusts took their name from the legal device of business incorporation called trusteeship, which consoli- dated contro l of industries by transferring stock in exchange for trust certificates. The practice grew out of necessity. Twenty-five years after the Civil War, rapid industrialization had blessed and cursed business. Markets expanded and productivity grew, but output exceeded demand, and competition sharpened. Rivals sought greater security and profits in cartels (mutual agreements to fix prices and control output). Out of these arrangements sprang the trusts. From sugar to whiskey to beef to tobacco, the process of merger and consolida- tion brought entire industries under the control of just a few powerful people. Oil and steel, the backbone of the nation’s heavy industries, lay in the hands of the corporate giants John D. Rockefeller and J. P. Morgan. The trusts could fix prices at any level. If a competitor entered the market, the trusts would sell their goods at a loss until the competito r went out of business, and then they would raise prices again. By the 1880s, abuses by the trusts brought demands for reform. History gave only contradictory direction to the reformers. Before the eighteenth century, During a December 1998 news conference in Washington, D.C., Bill Gates, founder of Microsoft, answers questions, via closed- circuit television, about the antitrust lawsuit filed against the company. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ANTITRUST LAW 315 COMMON LAW concerned itself with contracts, combinations, and conspiracies that resulted in restraint of free trade, but it did little about them. English courts generally let restrictive contracts stand because the courts did not consider themselves to be suited to judging adequacy or fairness. Over time, courts looked more closely into both the purpose and the effect of any restraint of trade. The turning point came in 1711 with the establishment of the basic standard for judging close cases, “the rule of reason.” Courts asked whether the goal of a contract was a general restraint of competition (a naked restraint) or partic ularly limited in time and geography (an ancillary restraint). Naked restraints were unreasonable, but ancillary restraints were often acceptable. Exceptions to the rule grew as the economic philosophy of laissez-faire economics (meaning “let the people do what they please”) spread its doctrine of non-interference in business. As rival businesses formed cartels to fix prices and to control output, the late-eighteenth-century English courts often nodded in approval. By the time the U.S. public was complaining about the trusts, common law in U.S. courts was somewhat tougher on restraint of trade. Yet it was still contradictory. The courts took two basic views of cartels: tolerant and condemning. The first view accepted cartels as long as they did not stop other merchants from entering the market. This view used the rule of reason to determine this, and it put a high premium on the freedom to enter into contracts. Bu sinesses and contracts mattered. Consumers, who suf- fered from price-fixing, were irrelevant; the wisdom of the market would protect them from exploitation. The second view was that cartels are thoroughly bad. It reserved the rule of reason only for judging more limited ancillary restrictions. Given these competing views, which varied from state to state, no compre- hensive common law could be said to exist. But one approach was destined to win. The Sherman Act and Early Enforcement In 1890, Congress took aim at the trusts with passage of the SHERMAN ANTI-TRUST ACT, named for Senator JOHN SHERMAN (R-Ohio). It went far beyond the common law’s refusal to enforce certain offensive contracts. Clearly persuaded by the more restrictive view that saw great harm in restraint of trade, the Sherman Act outlawed trusts altogether. The LANDMARK law had two sections. Section 1 broadly banned group action in agreements, forbidding “every contract, combination in the form of trust or otherwise, or conspiracy,” that restrained interstate or foreign trade. Section 2 barred individuals from monopolizing or trying to monopolize. Viola- tions of either section were punishable by a maximum fine of $50,000 and up to one year in jail. The Sherman Act passed by nearly unani- mous votes in both houses of Congress. Although sweeping in its language, the Sherman Act soon revealed its limitations. Congress had wanted action even though it did not know what steps to take. Historians would later dispute what its precise aims had been, but clearly the lawmakers intended for the courts to play the leading role in promoting competition and attacking monopolization: Judges would make decisions as cases arose, slowly developing a body of opinions t hat would replace the confusing precedents of state courts. For a public that expected overnight change, the process worked all too slowly. President Grover Cleveland’s Department of Justice, which disliked the Sherman Act, made little effort to enforce it. Initial setbacks also came from the U.S. Supreme Court’s first consideration of the This political cartoon depicts President Theodore Roosevelt resurrecting the Sherman Anti-Trust Act. Roosevelt’s administration filed 44 antitrust lawsuits in eight years. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 316 ANTITRUST LAW statute, in United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 (1895). Rejecting a challenge to a sugar trust that controlled more than 98 percent of the nation’s sugar-refining capacity, the Court held that manufacturing was not interstate commerce. This was good news for trusts. If manufacturers were exempt from the Sherman Act, then they would have little to worry about from federal antitrust regulators. The Court only began strongly supporting the use of the law in the late 1890 s, starting with cases against railroad cartels. By 1904 some 300 large companies still controlled nearly 40 percent of the nation’s manufacturing assets and influenced at least 80 percent of its vital industries. After the turn of the twentieth century, federal enforcement intensified. President Theodore Roosevelt’s announcement that he was a “trustbu ster” foreshadowed one impor- tant aspect of the future of antitrust enforce- ment: It would depend largely on political will from the Executive Branch of government. Roosevelt and his successor, President WILLIAM HOWARD TAFT , responded to public criticism over the rapid merger of even more industries by pursuing more vigorous legal action. Steady prosecution in the first decade of the twentieth century brought the downfall of trusts. In 1911 the U.S. Supreme Court ordered the dissolution of the Standard Oil Company and the American Tobacco Company in landmark rulings that brought down two of the most powerful industrial trusts. But these were ambiguous victories. In Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619, for example, the Court dissolved the trust into 33 companies, but held that the Sherman Act outlawed only restraints that were anticompetitive—subject, further- more, to a rule of reason. Critics of all stripes jumped on this decision. Some feared that conservative judges would now gut the Sherman Act; others predicted a return to lax enforce- ment; and businesses worried that in the absence of specific unlawful restraints, the rule of reason gave courts too much freedom to read the law subjectively. Congressional Reform up to 1950 Dissatisfaction brought new federal laws in 1914. The first of these was the Clayton Act, which answered the criticism that the Sherman Act was too general. It declared four practices to be illegal but not criminal: (1) price discrimi- nation—selling a product at different prices to similarly situated buyers; (2) tying and exclusive-dealing contracts—sales on condition that the buyer stop dealing with the seller’s competitors; (3) corporate mergers—acquisitions of competing companies; and (4) interlocking directorates—boards of competing companies, with common members. Quick to hedge its bets, the Clayton Act qualified each of these prohibited activities. They were only illegal where the effect “may be substantially to lessen competition” or “might tend to create a monopoly.” This language was intentionally vague. Despite specifying different tests for violations, Congress still wanted the courts to make the difficult decisions. One important limitation was added: The Clayton Act exempted unions from the scope of antitrust law, refusing to treat human labor as a commodity. The second piece of federal legislation in 1914 was the Federal Trade Commission Act. Without attaching criminal penalties, the law provided that “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce are hereby declared illegal.” This was more than a symbolic attempt to buttress the Sherman Act. The law also created a regulatory agency, the Federal Trade Commission (FTC), to interpret and enforce it. Lawmakers who feared judicial hostility to the Sherma n Act saw the FTC as a body that would more closely follow their preferences. Origina lly, the commission was designed to issue prospective decrees and to share responsibilities with the Antitrust Division of the Department of Justice. Later court rulings would allow it greater latitude in attacking Sherman Act violations. These laws helped to satisfy the short-term demand for tougher, more explicit action from Congress. Before long, antitrust enforcement would shift with the mood of the country. As WORLD WAR I and the 1920 s reversed the outlook of previous years, antitrust poli cy was charac- terized by the hands-off policies of President CALVIN COOLIDGE, who declared, “The chief business of the American people is busines s.” Economic trends created and supported this attitude; prosperity seemed a worthwhile re- ward. In this era, the DOJ gave more attention to promoting fairness than it did to attacking GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ANTITRUST LAW 317 . READINGS American- Soviet Treaty on the Limitation of Anti-Ballistic Missile Systems. May 26, 19 72. Moscow. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 310 ANTI-BALLISTIC-MISSILE TREATY OF 19 72 Assembly. principles of SALT I, continued limitations on strategic arms fell apart with the SALT II Treaty of 19 79. The GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 308 ANTI-BALLISTIC-MISSILE TREATY OF 19 72 U.S to it at various times through 19 50. The most important are the CLAYTON ACT of 19 14 (15 U.S.C.A. § 12 et seq.) and the ROBINSON-PATMAN ACT of 19 36 (15 U.S.C.A. § 13 et seq.). Congress also created