Administration and Enforcement

Abstract

Characterized as it is by litigation of far greater than average length and complexity, the antitrust field is one in which matters of procedure assume unusual importance. Every experienced antitrust lawyer knows that a case can be, and often is, won or lost long before trial, either through settlements impelled by full development of the facts in discovery proceedings or through advantages gained or lost in the interplay of a host of less tangible factors generated by the procedural framework within which the litigation progresses. Chapter VIII, the concluding chapter of the Report of the Attorney General's National Committee To Study the Antitrust Laws, is devoted to the subject of Administration and Enforcement.' Within this broad rubric, the Committee directed its attention to a series of specific problems. These problems, and the Committee's recommendations for their solution, vitally affect the government official and attorney on the one hand and the private practitioner on the other. It is our purpose to explore these effects, particularly from the viewpoint of the practicing lawyer, to expand some of the problems necessarily dealt with in capsule form in a report of such comprehensive scope, and to present some guides to specific application of the Report's general recommendations. We shall organize our discussion under the same topical headings used in the Administration and Enforcement chapter. By way of introduction, we note the broad procedural framework within which the antitrust laws are enforced. The Sherman Act carries criminal sanctions, to be imposed by the federal courts at the suit of the Attorney General.2 The Clayton Act, on the other hand, carries no criminal sanction, except under section 2, as amended by the Robinsin-Patman Act, providing criminal penalties for certain discriminatory practices.3 But the Sherman Act and the Clayton Act both provide