Enforcement discretion, not statutory text, shapes antitrust law’s meaning

Evidence

As far as the Sherman Act is concerned, policy is set by the attorney general, the Justice Department, and the lower courts. They have the job of deciding what to consider a violation, whom to prosecute, whom to let alone. The attorney general and the Justice Department make these decisions in the first instance; the federal courts accept or reject the government’s line. More than one hundred years have gone by since the Sherman Act was passed; a huge body of law has accumulated. Without the statute, this body of law would not exist, yet its exact shape owes relatively little to the precise (or imprecise) words of the statute. — Lawrence M. Friedman and Grant M. Hayden, American Law, 477

Categorization

• XREF: Crystallizes the enforcement-discretion theme from ch3 into a concrete modern instance; also parallels law-merchant literature on private ordering filling gaps that formal law leaves open. — connects to: Congress created the FTC because the Justice Department’s antitrust enforcement lacked continuity across administrations — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 627; Enforcement discretion makes written rules differ from actual practice — Lawrence M. Friedman and Grant M. Hayden, American Law: An Introduction, 55; Congress deliberately delegated antitrust law creation to the courts via broad statutory language — Frederick Schauer, Thinking Like a Lawyer, 273 (+2 more)

Broader Connections

• Congress deliberately delegated antitrust law creation to the courts via broad statutory language #corroborates (0.92) — Frederick Schauer, Thinking Like a Lawyer, 273
• Courts decide statutory meaning where legislative intent is genuinely ambiguous #corroborates (0.82) — Lawrence M. Friedman and Grant M. Hayden, American Law, 490
• Executive discretion beyond statute is justified by law’s unavoidable incompleteness #corroborates (0.78) — John Locke, Second Treatise of Government, 197