Page:The Green Bag (1889–1914), Volume 17.pdf/339

THE GREEN BAG and business by persuasion and its incidental question in the law of torts. This is what aids." is now occurring in the industrial world. In the past the act of buying and selling has TORTS (Unfair Competition) either been without resulting injury to any AN address by William Draper Lewis, de one, or if injury has resulted, as in the case livered before the Congress of Arts and Sci where sharp competition has driven one of ences, entitled "The Closed Market, the Union the competitiors to the wall, the interest of Shop, and the Common Law," is printed in the community in procuring cheaper goods the April Harvard Law Review (V. xviii, p. has formed a sufficient legal excuse for the 444). From a brief consideration of recent injury. To-day, however, owing to the greater power of combination, the act of granting decisions the author declares: "That our courts have met the question of or withholding one's goods or labor can be private law raised by the latest form of ' boy made under circumstances which produce in cott' in an uncertain manner. When the jury to others, and deprive the actors of any legality of attempts to close the market by legal excuse for that injury. The worst mod economic pressure on those who deal with ern examples of this are the attempts, of rivals has been called in question, the ten which the acts of the defendants in the cases dency has been to regard the acts of the de discussed are instances, of associations of fendants as lawful; when the legality of similar capitalists and of associations of laborers to attempts to unionize a shop has been called close the market to outsiders or the shop to in question, the tendency has been to regard the non-union man or member of a rival union. such attempts as illegal. In both classes of In all of them the act of the defendants in cases, however, we have conflicting decisions." granting or withholding their goods or labor This uncertainty he contends is due to an was an act oppressive to those who would error in fixing the attention primarily on the deal with the plaintiff. Its intent was to right of the defendant rather than injury to drive the plaintiff out of the trade or business the plaintiff. He protests against laying down which the defendants desired to monopolize as fundamental the right of the defendant to for themselves. However words sounding of sell labor or to sell goods, and contends that 'inherent rights' may momentarily cloud the this right is no more fundamental than any issue, in the long run I believe our courts will, other, and that its existence depends upon without exception, declare this form of 'boy surrounding circumstances. The author pro cott' illegal, and, as in Pennsylvania and ceeds to contend for the principle which has Massachusetts, hold those who institute it been explained in detail in these pages in the liable for the injury they inflict upon others. recent articles by Professor Wyman on the To right the wrong inflicted on particular "open market" and the "open shop," and individuals, legislation is not needed. What is needed is to get rid of the notion that there closes as follows: "It is inevitable that from time to time are some acts, such as buying and selling, acts which heretofore have been performed which a man has an inherent right to do under under circumstances which either did not in all circumstances, and hold to the fundamental jure others or for which the actors had a valid position of our common law — that he vho excuse, come to be performed under circum injures his fellow-man is liable for that injury, stances which either produce injury or deprive unless he can show that the community re the usual excuse of its validity. When this gards his act as conducive to the public wel occurs, courts are confronted with a new fare."