The Antitrust Laws of the United States of America: A Study of Competition Enforced by Law

By A. D. Neale | Go to book overview

CHAPTER XII
THE ADMINISTRATION OF THE ANTITRUST LAWS

1. Functions of the Antitrust Division of the Department of Justice and the Federal Trade Commission

Antitrust is to a large extent enforced by the lawyers who advise business firms. Legal advisers tend to play a larger part in business administration in the United States than in Britain and many more corporations have their own legal staff. Once antitrust case-law has developed firm lines of doctrine on a given topic, the legal advisers who must protect their employers or clients from expensive litigation will seek to keep business policies within these lines, and this undoubtedly prevents many infractions of the law.

But there must, of course, be public enforcement; otherwise there would be no case-law for the business lawyer to advise his client about. Moreover it is the vigilance of public law enforcement which provides the drive towards conformity. In the United States two public authorities share the task of enforcing antitrust. These are the Antitrust Division of the Department of Justice and the Federal Trade Commission. As has already been noted, these two bodies have concurrent jurisdiction over a considerable part of the field. By court interpretation restrictive practices which might constitute offences against the Sherman Act may be attacked as unfair methods of competition under section 5 of the Federal Trade Commission Act. The Clayton Act itself provides for concurrent jurisdiction over the offences which it creates.

Broadly speaking the Department of Justice takes to itself the enforcement of the Sherman Act, in particular the prosecution of serious and significant infringements of that Act, and normally takes action under the Clayton Act only when charges under that Act are a factor in a broader picture of Sherman Act violation. The Federal Trade Commission, with its prophylactic and preventive role, enforces section 5 of the Federal Trade Commission Act and take the main brunt of the work under the Clayton Act.1 The Commission has no criminal jurisdiction. The procedures adopted by these two law-enforcing

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1
The Department of Justice plays a larger part in enforcing section 7 of the Clayton Act (against mergers) than sections 2 and 3.

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