Reflecting on the general growth of litigation in the federal courts, one author recently observed: "The tide of federal cases has been out of all proportion to any growth in population and reflects the outpouring of congressional enactments from the mid-1960s on that reach to the roots of private activity." [Jethro K. Lieberman, The Litigious Society, 1981) It is from that "outpouring of congressional enactments from the mid1960s on" that the pervasiveness of the Justice Department's role in American life has arisen. And it is that role itself that we are now reassessing and reforming in the light of experience. For too long, the government as lawyer and litigator-and I might add as economic regulator-has pursued this theory and then that with too little reflection on the practical effects of its course. The confusion that has resulted throughout society-and the plain anger-have, however, at long last attracted government's attention. As I consider the federal government in America today, including the Justice Department, I remember a story told about Oliver Wendell Holmes late in his distinguished career on the Supreme Court. Holmes, so the story goes, found himself on a train. Confronted by the conductor, he couldn't find his ticket. Recognizing the distinguished jurist, however, the conductor told him not to worry, that he could just send in the ticket when he found it. Holmes looked at the conductor with some irritation and replied: "The problem is not where my ticket is. The problem is, where am I going?" As the result of the election of President Reagan, the critical question today is not just what the government has been doing, but where it is going now. Today, I want to try to answer that question concerning one large area for which the Department of Justice is primarily responsible-antitrust enforcement. Although some believe that antitrust law is merely an arcane field for the specialist, all of you know that it is much more important than that. As President Franklin Delano Roosevelt himself wrote nearly four decades ago: "The Sherman and Clayton Acts have become as much a part of the American way of life as the
due process clause of the Constitution." Federal antitrust law forms the constitution of our economic liberties. In Northern Pacific Railway v. U.S. (1958), the Supreme Court described the Sherman Act as: "designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions." We subscribe fully, and without qualification, to this statement, and we embrace it as the goal of our antitrust efforts. The underlying theme of our antitrust activities will be the promotion of competition. When originally enacted, the Sherman Act contained less than 1000 words. Together, the principal antitrust statutes-the Sherman and Clayton Acts-occupy fewer than twenty-five pages, including notes, in the United States Code. Nevertheless, the court decisions interpreting those few pages fill volumes upon volumes. In the first thirteen, formative years of federal antitrust law-to the time of Northern Securities, only 16 civil suits and seven criminal suits were instituted by government-and only 34 private suits were brought. Last fiscal year alone, the Justice Department's Antitrust Division itself filed 83 cases-55 of which were criminal cases-and opened over 360 formal investigations. As of this March, nearly 2800 private antitrust suits were pending in the federal courts. In this context, I believe it essential for the federal government to make its enforcement goals as clear as possible. Compliance and enforcement both require greater certainty. There is an old antitrust story concerning one of the "malefactors of great wealth," to use Teddy Roosevelt's words. This businessman was considering a new merger to expand his industrial empire. He cabled the details of his plans to his attorney to discover whether they would meet any difficulties under the federal antitrust laws. The attorney telegraphed a
four-word answer in return: "Merger possible; conviction certain." In addition to ensuring that our antitrust efforts fUlly consider competitive reality, we intend to pursue that kind of clarity and certainty as a goal. We will seek out and prosecute those who engage in anticompetitive activities. When we find agreements between competitors to fix prices, allocate markets, or otherwise refrain from competition, we intend to bring criminal actions. We will not be satisfied by having corporations pay fines. In these cases of knowing violations of clear-cut antitrust prohibitions, indictment of, and prison sentences for, the individuals involved will be vigorously pursued. This, of course, is not the first Administration to commit itself to promoting competition as the cornerstone of its antitrust activities. We believe, however, that we take more seriously than many others the goal of preserving free competition as the rule of trade. In the past, under the guise of promoting competition, other Administrations have pursued a number of misguided and mistaken concepts that have generated anticompetitive results in the name of antitrust enforcement. We intend vigorously to enforce the antitrust laws against clearly anticompetitive activities and to spare no effort in also eliminating anticompetitive governmental practices. For example, some have argued that competition is synonymous with a large number of competitors. Economic reality, however, is more complex. The number of firms in any given industry does not always, without a great deal more information, reveal enough about the nature, quality, or vigor of competition in that industry. In some industries, competition yields a large number of competitors-in others, only a fewdepending upon the economics of scale, distribution costs, and other factors. In any industry, however, competition will inexorably result in the elimination of some competitors-those that are least efficient. That process is, indeed, one of the results and purposes of the competitive process. We must recognize that bigness in business does not necessarily mean badness-and that success should not be automatically suspect. The disappearance of some should not be taken as indisputable proof that something is amiss in an industry. In a race, the fastest runner is not penalized January 1982/Arkansas Lawyer/7