Josh Hess

Document Type


Media Type



This article provides an explanation to an as-yet unresolved historical anomaly: The government's 1911 decision to prosecute U.S. Steel under the Sherman Antitrust Act. The government filed suit in the face of clearly hostile precedent. In 1895's United States v. E.C. Knight, a landmark decision, the Supreme Court held that the Sherman Act could not reach large manufacturing combinations simply by virtue of their size. In the course of providing an explanation, this article examines contemporary legal scholarship and comes to the surprising conclusion that Progressive Era legal scholars believed E.C. Knight had been overruled by 1911. This fact has modern significance. A group of legal scholars known as "Lochner Era Revisionists" have undertaken to challenge the conventional wisdom that the pre-New Deal Supreme Court was a bastion of activist conservatism, abusing doctrine to protect big business. In the "revisionist" view, the pre-New Deal Court cared more about neutral legal principles than previously acknowledged. In particular, revisionists Barry Cushman and Charles McCrudy have argued that E.C. Knight was not the cynical nod to business interests traditionally believed. Rather, the holding was grounded in preexisting jurisprudence. As the article explains, the fact that contemporaries believed Knight was overruled”and the reasons behind that belief”lend support to the revisionist reading of Knight.

First Page


Last Page


Publication Date









Northern Illinois University Law Review

Suggested Citation

Josh Hess, Misreading Knight, 31 N. Ill. U. L. Rev. 95 (2010).

Included in

Law Commons


To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.