Fair Trade and the State Constitutions -- A New Trend

The proponents of resale price maintenance will mark the years 1955 and 1956 as a period of major setbacks. The past two years have seen the highest courts of eight states' invalidate state Fair Trade laws. The rapid development of this trend is surprising in view of the fact that prior to 1949, the constitutionality of such legislation under the state constitutions had been upheld by every state court in which it was attacked, and was widely regarded as a settled proposition. Much has been written explaining, defending, and condemning the concept of Fair Trade, and no attempt will be made here to reconstruct the numerous discussions concerning the economic wisdom of the institution.

However, constitutional decisions are not resolved in a vacuum, apart from social, political, and economic situations. Some notice must, therefore, be taken of the flood of criticism directed at Fair Trade from diverse sources, and of the possibility that the influence of such criticism upon judicial thinking has been even more profound than the recent opinions indicate.