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 XIII
ANTITRUST REMEDIES

1. Criminal and civil remedies: fines in practice the only criminal penalty

The last topic in this description of antitrust is that of remedies; the impact of these laws on business cannot be assessed without knowing what happens to those who break them. It has already been noted that the Government's choice between criminal and civil proceedings cannot be guided simply by the gravity of supposed offences and is to some extent artificial. The real guide is the expected end-result of the legal process. A flagrant price-fixing conspiracy must be made the subject of a criminal case. A civil proceeding ending in a set of injunctions for the future could do no more in such a case than repeat the injunctions of the statute itself. The only end-result worth having from the point of view of the authorities is the punishment of the wrongdoer.

On the other hand, a flagrant and cynical seizure of monopoly power by a single enterprise or by a conspiracy between a few large firms may involve an altogether more serious degree of restraint of trade. Punishment may be just as apt as in the former case and indeed criminal proceedings may be brought and fines imposed. But in such a case it would be highly unsatisfactory to the authorities if fines of a few thousand dollars ended the matter. The monopoly would still be in control and the fines might be regarded simply as a not unreasonable licence fee for monopoly power. In such a case, therefore, those who enforce the law must have recourse to civil proceedings in order to obtain control over the future behaviour of the monopolist and, if possible, to secure a decree of dissolution so that its power may be dispersed or diluted. Yet the decree in a civil proceeding is not in theory punitive.

All this is somewhat artificial. People who have built up a successful business will regard a decree breaking it up as punitive, whatever the legal textbooks may say. Even injunctive relief, when it is extensive and detailed, will be regarded as punitive, especially when activities

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