The Case for Federal Uniformity
Jerome A. Hochberg
As a response to the Reagan Administration's passive approach to the antitrust laws, state attorneys general have in recent years become a very active force in federal antitrust enforcement. 1 The state attorneys general have not only prosecuted antitrust violators under state antitrust laws, but also have brought actions under the federal antitrust laws to enforce federal rights.
Previously state attorneys general sued as parens patriae on behalf of the citizens of the state to recover damages for injuries sustained by reason of federal antitrust violations. These actions usually took the form of damage suits following federal price-fixing indictments. More recently, however, state attorneys general have been initiating law suits under the Sherman and Clayton Acts when the Antitrust Division and the Federal Trade Commission have failed to do so. 2
Such actions, if not exerting pressure on federal enforcement authorities, at least have revealed their failure to act. In some cases the failure to act by federal authorities is open to serious question. In others, sound economic analysis, even under less conservative standards than those espoused by the Reagan Administration, would dictate forbearance.
My purpose is not to engage in a discussion of the pros and cons of particular enforcement actions by state or federal prosecutors. Rather, I raise an alarm that such hybrid antitrust enforcement contains the seeds for confusion, inconsistent enforcement standards, unnecessary complexity, considerable additional expense, and dubious use of limited resources.
Our judicial and prosecution processes need to be streamlined and made more efficient, not diffused and jumbled. Moreover, the vast stream of transactions that make up the interstate commerce of the United States (and indeed international commerce as well) needs consistent and uniform application of the law. As we emerge into a global economy, the trend ought to be toward more uniformity and consistency among nations in