For nearly eighty years the Department of Justice has disposed of civil antitrust suits through settlement negotiations followed by entry of a consent decree. Though not expressly authorized by statute, the Supreme Court has affirmed the use of this powerful enforcement tool. In 1974, Congress enacted the Antitrust Procedures and Penalties Act (APPA), which includes a provision that district court judges must determine if a proposed consent decree is "in the public interest" before entering it. This Note analyzes the standards applied by the courts in their review of consent decrees before the enactment of the APPA. the congressional intent in passing the legislation, and the standards that courts have applied since its enactment-focusing on the unclear staidard for making the "public interest" determination. The Note explores the implications of the new and ill-advised standard applied by the district court in United States v. American Telephone & Telegraph Co. In concluding that the cases have not yet established a satisfactory analytical formula for reviewing consent decrees, the Note proposes a workable standard of review that will allow the courts to simultaneously make an independent determination that the proposed decree is in the public interest, preserve the consent decree as a viable enforcement tool, and accord the Department of Justice the discretion it needs to enforce the antitrust laws.
James C. Noonan,
Judicial Review of Antitrust Consent Decrees: Reconciling Judicial Responsibility with Executive Discretion,
35 Hastings L.J. 133
Available at: https://repository.uchastings.edu/hastings_law_journal/vol35/iss1/4