Failure and Success
Chapter 3: Criminalisation in the United States
The dual civil and criminal law nature of the US antitrust regime is explicit in the wording of the primary legislation of the Sherman Act, which was first enacted in 1890. At the time of writing, s 1 of the Sherman Act is in the following terms: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by a fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court. The approach taken to enforcement of the Sherman Act has varied substantially over the 120 years since the Act entered into force on July 2, 1890. When first introduced the legislature did not focus on enforcement mechanisms, the power to enforce the new law simply being passed to the Attorney General with no additional funds or resources made available to support enforcement, and the first attempt to enforce the new legislation was a crushing failure for the Government.
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