In the modern era in the United States, efficiency was a favorite defense by industrial autocrats like John D. Rockefeller and financial autocrats like J.P. Morgan of their used of corporate power to arbitrarily determine particularly political economic outcomes. The progressive elite, meanwhile, later turned efficiency into a veritable religion. That's why the American people learned long ago to reject efficiency as either a goal or a means to public or private governance, and why we consistently rejected it for the first two hundred years of our nation. We understood that efficiency was a code word for top-down autocratic rule by the lords and the private corporate estates or the "public" state. Hence we rejected efficiency in the Declaration of Independence and again in the Constitution. We rejected efficiency when we wrote the Sherman Antitrust Act, then reiterated our rejection time and again in our other antimonopoly laws. The Supreme Court unanimously rejected efficiency as an excuse for industrial dictatorship when it ordered the breakup of Standard Oil despite the fact that the company had lowered the cost of a gallon of kerosene by more than half. The Supreme Court unanimously rejected the efficiency argument again in 1935 when it ruled President Roosevelt's National Industrial Recovery Act unconstitutional. In every case, the American people embraced not efficiency but freedom and moved to protect that freedom through the erection of intricate systems of checks and balances designed to scatter power.

Which brings us to a set of laws that are closely related to price discrimination: our common carriage laws. These hold that certain businesses--especially those with a real or a de facto license to provide a vital service to the general public--must be kept open to all potential customers on a fair basis. The provider of the service cannot discriminate among users, either by denying service to some and not to others or by charging different people different prices. The ancient Romans applied the concept to inns and ships. The English applied it to cabs, ferries, toll roads, mills, bakeries, surgery, tailoring, and breweries. In the United States, in the nineteenth century, we extended it to steamboats, telegraphy, and eventually railroads.