# Brown Shoe v. United States (1962) **Argued:** December 6, 1961 · **Decided:** June 25, 1962 · **6–1, Chief Justice Earl Warren** · 370 U.S. 294 The first Supreme Court interpretation of the [[Celler-Kefauver Act]], and the single most-quoted merger opinion in American law — including by the people who most want it overruled. Brown Shoe was the fourth-largest US shoe manufacturer, about **4%** of national production. Kinney was the largest family-shoe chain and the twelfth-largest manufacturer, about **0.5%** of production and **1.2%** of retail sales. The merged firm would have roughly 1,600 outlets and about **7.2%** of shoe stores nationally. The Court blocked it — on both vertical and horizontal grounds. ## The three doctrines **Incipiency.** Congress feared "a rising tide of economic concentration" and legislated to catch a merger trend "at a time when the trend to a lessening of competition in a line of commerce was still in its incipiency," giving courts "the power to brake this force at its outset and before it gathered momentum." **Submarkets.** Warren supplied a list of "practical indicia" — industry recognition, peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, price sensitivity, specialized vendors — that let a court find a relevant market narrower than the obvious one. Men's, women's and children's shoes were separate lines of commerce; a single city could be a geographic market. **And the passage that defines the era:** > "It is competition, not competitors, which the Act protects. But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned business. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization." *(The U.S. Reports text reads "locally owned business," singular — the plural is a near-universal misquotation.)* ## Why it is the hinge That paragraph is the whole argument in miniature. Warren concedes that structural antitrust may raise prices, and says Congress chose decentralization anyway. [[Robert Bork]] built *[[The Antitrust Paradox]]* around exactly this admission, treating it as a confession that antitrust had become incoherent — protecting competitors at consumers' expense. The [[New Brandeis Movement]] reads the same paragraph as the correct answer: concentration is a political fact before it is a price fact, and Congress said so. **Both sides of the sixty-year fight over American antitrust are arguing about one paragraph of Earl Warren's prose.** See [[United States v. Philadelphia National Bank]], [[United States v. Von's Grocery]], and [[US Antitrust and Monopoly Timeline]].