Learned Hand, Alcoa, and the Reluctant Application of the Sherman Act

As Gerald Gunther discusses in his monumental biography of Learned Hand, Hand was active in Theodore Roosevelt's attempt to return to the White House in 1912. During those years, Roosevelt denounced antitrust as "rural toryism," and Hand shared Roosevelt's skepticism. How, then, did Hand write the decision three decades later in United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), with, among other passages, its tributes to small business and to non-economic values of antitrust? The text itself contains an (overlooked) clue – the discussions of antitrust's goals are couched either in the third person or the passive voice. Further, the pre-conference memos that the three judges on the panel wrote to each other show that Hand (along with his colleagues) did not seek to implement his own policy views; indeed, Hand "despise[d] this whole method of dealing with a very real and very serious problem in our industrial life;..." Rather, consistent with Hand's philosophy of legislative interpretation, the decision sought to implement Congressional intent as Hand perceived it – and that intent was sufficiently clear, Hand believed, that the public would "quite rightly, write us down as asses" unless the panel found a Section 2 violation