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The first recorded antitrust trial?

LysiasIf greed is as old as human existence, then antitrust must be as well. There are no records of antitrust laws on Neanderthal cave paintings (or any that we’ve interpreted as such, at least), but the earliest documentation of an antitrust trial is much older than what one would maybe guess. The first written example of an antitrust case is described by an ancient Greek orator named Lysias. The facts of the illegal activity are quite remote and not really relatable to anyone now, but the description of the trial is interesting in observing how antitrust has always had a political side.

Lysias describes the trial of the grain dealers of Athens. Grain was a vital import for the Athenians. The soil in and surrounding Athens was very poor so it wasn’t possible for the Athenians to grow it themselves. Since grain was a necessary ingredient to produce bread, its trade was heavily regulated by the authorities of Athens. Fearing a long winter or possible attacks by Sparta, one of the grain commissioners suggested to the dealers not to compete when buying grain from the docks. Seeing a window of opportunity to make profits on the backs of the Athenians, the grain dealers bought large amounts of grain at the same price and stored it.

Wheat

Since none of the dealers were offering a different purchase price to the merchants at the docks, they created a monopsony. In this way, they fixed the price for wholesale wheat. Wholesale price-fixing is not unheard of in modern times. In fact, fixing of the wholesale prices of medicines for the benefit of citizens is a common practice by modern governments. The price-fixing was not problematic in and of itself. In fact, Lysias admits that the actions of the dealers might have been to the benefit of the Athenians up until that point. This is because storing grain would have secured that Athens would have enough of it in a time of crisis. This explains why the grain commissioner advised the dealers to collude in the first place. The action became problematic when the dealers hoarded the grain and sold it at inflated prices. Through these actions, Lysias explains, the dealers created a disincentive for ships to trade with Athens and they cheated the Athenian public.

Hoarding

The case is interesting just as historical trivia, but it’s also interesting as a chance to witness the political side of antitrust. Lysias doesn’t document the verdict of the trial. But in his speech he accuses the dealers of being ‘resident aliens’ of the city. He appeals to the emotion of the Athenians by saying:

‘…[the grain dealers] are so delighted to see your disasters that they get news of them in advance […] or [they] fabricate […] rumour themselves […] And thus at times, although there is peace, we are besieged by these men’

The story of Lysias is therefore a reminder to be cautious when enforcing antitrust. Because, in the hands of a populist, antitrust can escape the sphere of the legal and enter the realm of the political. 

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Read more:

  1. Lambros E. Kotsiris, ‘An Antitrust Case in Ancient Greek Law’ (1988) 22 Int’l L. 451
  2. Wayne R. Dunham, ‘Cold Case Files: The Athenian Grain Merchants 386 B.C.’ (2007) Available at SSRN: https://ssrn.com/abstract=976028