Standards of American Legislation; An Estimate of Restrictive and Constructive Factors (Paperback)

This historic book may have numerous typos, missing text or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1917. Not illustrated. Excerpt: ... CHAPTER III THE TASKS AND HAZARDS OF LEGISLATION If the tasks of legislation are set by the traditional shortcomings of the common law or by its failure to adjust itself to changing conditions, we should expect to find in modern regulative statutes a general endeavor to define vague restraints or prohibitions, to strike at antisocial conditions at a point more remote from actual loss and injury, and to give effect to altered concepts of right and wrong and of the public good. Such, in fact, is the scope and content of modern welfare legislation. Not only, however, is it inevitable that the legislature should not always clearly comprehend its task and therefore perpetuate, instead of correcting, common-law defects, but it must also happen that, in narrowing the bounds of toleration, legislation will now and then antagonize important and powerful interests, and will be challenged for having taken its new stand upon insufficient justification. The problems thus created should be considered somewhat in detail. A. LEGISLATION AND THE VAGUENESS OF COMMON-LAW STANDARDS i. Restraint of trade and monopoly.--The failure to correct common-law inadequacies has been most conspicuous in dealing with the problem of combinations in restraint of trade. The common law of conspiracy was notoriously uncertain as to the nature and extent of illegal practices, whether as a matter of tort or of crime, whether applied to labor or to capital. When toward the end of the eighties of the last century a strong apprehension seized the nation with regard to the dangers and evils of monopolistic combination, a demand for new legislation arose, and the absence of a federal common law of crimes made legislation for interstate commerce necessary if repressive action was to be taken by the nationa...