NCJ Number
39749
Journal
Texas Law Review Volume: 45 Issue: 7 Dated: (OCTOBER 1967) Pages: 1301-1346
Date Published
1967
Length
46 pages
Annotation
THE HISTORY AND USE OF JAIL SENTENCES AND CRIMINAL FINES ARE EXAMINED ALONG WITH THE MYTHS AND PRESUMPTIONS THAT HAVE GROWN UP AROUND THESE CONTROVERSIAL ANTITRUST REMEDIES.
Abstract
CRIMINAL ANTITRUST PROSECUTIONS HAVE BEEN ATTACKED ON THREE GROUNDS - THAT THE ANTITRUST LAWS ARE TOO VAGUE FOR THE IMPOSITION OF CRIMINAL PENALTIES UPON VIOLATORS; THAT THE DEGREE OF MORAL TURPITUDE FOUND IN THE AVERAGE ANTITRUST VIOLATION DOES NOT JUSTIFY THE PUNISHMENT INVOLVED IN BRANDING AN INDIVIDUAL A CRIMINAL; AND THAT THE ASSESSMENT OF RESPONSIBILITY FOR A VIOLATION IS ALL BUT IMPOSSIBLE BECAUSE OF THE SIZE AND COMPLEXITY OF THE MODERN CORPORATION. HOWEVER, THE RISK OF CRIMINAL LIABILITY FOR VENTURING INTO A PRACTICE SUBSEQUENTLY CONDEMNED AS VIOLATIVE OF ANTITRUST POLICY IS SUBSTANTIALLY MITIGATED BY THE DEPARTMENT OF JUSTICE, ANTITRUST DIVISION POLICY OF RESERVING CRIMINAL SANCTIONS FOR CLEAR-CUT VIOLATIONS. MOREOVER, ANTITRUST VIOLATIONS DO CONTAIN AN ELEMENT OF MORAL WRONG, AND THOSE VIOLATING ANTITRUST LAWS SHOULD BE HELD TO A HIGH DEGREE OF RESPONSIBILITY IN VIEW OF THE CERTAINTY OF STANDARDS IN MANY AREAS OF ANTITRUST REGULATION, THE AVAILABILITY AND USE OF WELL-TRAINED COUNSEL BY MANY OF THOSE INDICTED FOR ANTITRUST VIOLATIONS, AND THE HIGH DEGREE OF INTELLIGENCE, EDUCATION, AND SOCIAL BACKGROUND OF THE NORMAL ANTITRUST VIOLATOR. FEDERAL ENFORCEMENT OFFICIALS HAVE, IN ADDITION, INCREASED THEIR EFFORTS TO ASSESS CRIMINAL LIABILITY UPON CORPORATE OFFICERS, DIRECTORS, AND AGENTS WHERE THEY HAVE AUTHORIZED, ORDERED, OR DONE ANY OF THE ACTS CONSTITUTING IN WHOLE PART THE CORPORATION'S VIOLATION OF THE ANTITRUST LAWS. THEREFORE, IT IS RECOMMENDED THAT FEDERAL ANTITRUST REGULATION BE ENFORCED PRIMARILY BY CRIMINAL SANCTIONS: THAT FEDERAL OFFICIALS LIMIT CRIMINAL ENFORCEMENT TO PER SE AND OTHER TYPES OF VIOLATIONS WHICH ARE PREDATORY, WILLFUL, OR AMOUNT TO ECONOMIC RACKETEERING; AND THAT THE USE OF JAIL SENTENCES BE RETAINED FOR PARTICULARLY FLAGRANT ANTITRUST VIOLATION. THE CASE FOR CRIMINAL SANCTIONS IN STATE ANTITRUST STATUTES IS EVEN STRONGER SINCE LOCAL VIOLATIONS ARE USUALLY CLEAR-CUT PER SE VIOLATIONS BY SMALL BUSINESS ENTITIES, MAKING THE TASK OF ASSESSING INDIVIDUAL RESPONSIBILITY LESS DIFFICULT AND THE DETERRENT VALUE OF SANCTIONS MORE EFFECTIVE. APPENDED MATERIALS INCLUDE TABULAR DATA ON THE DISPOSITION OF CASES BROUGHT BY THE DEPARTMENT OF JUSTICE AND ON THE REMEDIES AVAILABLE UNDER STATE ANTITRUST STATUTES....ELW