Modification of Consent Decrees: A Proposal to the Antitrust Division

The genius of the Sherman Act has been said to lie in its generality and adaptability. Thus the act has been successfully applied for almost three-quarters of a century to an economy that has been more dynamic than during any comparable period in history.

In 1912, twenty-two years after passage of the act, consent decrees began to be frequently used as a means of settling, without trial, civil antitrust suits brought by the government. Their use became even more popular as a result of the passage in 1914 of section 5 of the Clayton Act. It permitted private plaintiffs seeking triple damages for alleged antitrust injuries to use final judgments in antitrust cases instituted by the government as “prima facie evidence . . . as to all matters respecting which said judgment of decree would be an estoppel as between the parties thereto.” But the section contained a proviso that it should “not apply to consent judgments or decrees entered before any testimony has been taken.” The effect of this proviso was to give defendants in antitrust cases a real incentive to compose their difficulties with the government.