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Cry Wolf—Sherman and Clayton Are Coming!

Edwin M. Cage, Proceedings of 27th Annual Rocky Mountain Mineral Law Institute (1981)

Then one day a wolf actually appeared and the boy called out, Wolf! Wolf! But the villagers, thinking they were being deceived again, did not heed his call.

Aesop's Fables, The Shepherd's Boy

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Sherman and Clayton are out there all right. They have been for a long timeSherman since 1890 and Clayton since 1914.But how is a body to know when the sheep are really in danger? The penalties are so severe that the careful lawyer must warn the client. It is also true that constant and indiscriminate warnings will leave the client unable to distinguish between a danger which is real and one which is only imagined. How can the lawyer know when it is time to sound the alarm? It will be the purpose of this paper to help the lawyer in the field of mineral exploration and production to know when It's time!1

PROLOGUE

The Folklore of Capitalism

This story starts in the middle, halfway between the passage of the Sherman Act in 1890 and the present day. In the mid-1930's, Thurman Arnold was persuaded by a colleague from the Yale Law School faculty to join him in some work at the Securities and Exchange Commission. This was followed by an assignment to the Tax Division of the Department of Justice. In 1937, Arnold wrote a book entitled The Folklore of Capitalism. It was a scorching criticism of the Supreme Court, which had just struck down m