OFFICIAL REPORT FROM WASHINGTON: Antitrust And The Proposed Revision Of Federal Criminal Laws Introductory Remarks Member of the Illinois Bar Chairman, Program Committee Good morning, ladies and gentlemen. We are pleased to welcome you to the second day of our Spring Meeting Program. Our program this morning begins with a panel discussion on "Antitrust and the Proposed Revision of Federal Criminal Laws". Our moderator is Denis G. McInerney. Denis is Chairman of the Section Committee on Criminal Practice and Procedure. He is with the New York law firm of Cahill Gordon & Reindel, and has played an instrumental role in putting together our program this morning. Denis McInerney. Introductory remarks By DENIS G. McINERNEY Chairman, Criminal Practice Thank you. Ladies and gentlemen the subject of our program this morning had its origin in the National Commission for Reform of Federal Criminal Laws, which is commonly known as the "Brown Commission", after its Chairman, former Governor "Pat" Brown of California. That Commission was established by an Act of Congress in 1967, which provided that it should be composed of three Senators appointed by the President of the Senate, three Congressmen appointed by the Speaker of the House, three Presidential appointees, and three judges appointed by the Chief Justice of the United States. It had, in addition, an eminent Advisory Committee chaired by the Honorable Tom C. Clark, and consisting of representative lawyers from various segments of the legal community. 395 1 396 OFFICIAL REPORT FROM WASHINGTON The Brown Commission had the formidable task of reviewing our entire federal system of criminal justice and recommending legislation to revise, repeal, or recodify such portions of our statutory system as might be appropriate. The final report of the Commission was issued and submitted to the President and the Congress in 1971. It included a comprehensive proposed new Federal Code to replace our present Title 18, as well as other criminal statutes. It went far beyond, however, merely recodifying existing laws. The Brown Report urged the adoption-and this for the first time in our federal system of jurisprudence—of a single definition of an "attempt", which would be applicable to every federal crime. It suggested that a criminal attempt should be defined as "intentionally engaging in conduct which, in fact, constitutes a substantial step toward the commission of the crime. Factual or legal impossibility of committing the crime is not a defense." Members of this Section will readily perceive that such a definition would dramatically revise our present definition of, for example, attempts to monopolize, and would in addition create a new crime, which presumably would be known as "attempts to conspire to restrain trade". As a result of this Brown Commission Report, two bills are presently pending in Congress-S. 1 and S. 1400, both introduced last year. S. 1 was introduced under the sponsorship of Senators McClellan, Ervin and Hruska, and S. 1400-known as the Administration measure--was sponsored by Senators Hruska and McClellan. Both of these bills were referred to the Senate Judiciary Committee Subcommittee on Criminal Laws and Procedures, the Chairman of which is Senator McClellan, and the ranking minority member of which is Senator Hruska. These bills have powerful bipartisan support in this important area of Committee consideration. Because of their scope and complexity, however, the bills are still in Committee, so that our program today is entirely timely. As a matter of fact, we have with us today the Chief Counsel of the Senate Judiciary Subcommittee on Criminal Laws and Procedures, Mr. Paul C. Summitt, and he assures me that today's proceedings will be included in the hearing record of the Subcommittee's consideration of these bills. While S. 1 and S. 1400 certainly have a social significance that is beyond the competence of even this august Antitrust Section of the American Bar Association, and a great deal of study, time and effort have gone into both of these measures, we submit that it is appropriate for this Section to examine this proposed legislation publicly and to explore and evaluate its impact in the antitrust area. It may be of interest to you and your clients, for example, that S. 1 would make it a felony to violate the Robinson-Pat ANTITRUST AND THE PROPOSED REVISION OF FEDERAL CRIMINAL LAWS 397 man Act, or the Federal Trade Commission Act, or the Sherman Act, or the Clayton Act. And if the prospect of felony merger doesn't disturb you, it may be of some interest that both bills provide for probation of a corporation convicted of a crime, such as an antitrust offense. It is intriguing (to me, at least) to speculate that perhaps Ralph Nader and his "Raiders" may some day discover that their true vocation in life is to be probation officers for a very elite clientele which would be screened by whoever composes the Fortune "Five Hundred" list of top corporations in the country. I will leave further fantasizing on that subject to you for your own comfort if nothing else. Now our program this morning is divided into three parts-like Gaul, and our panelists have gall bordering on chutzpah. They need it to publicly criticize these bills which have had so much consideration before. The first part concerns the substantive changes that would be wrought by these bills; the second deals with the penalties that they would provide; and finally, the third will evaluate both. We will then proceed to a more informal discussion and question and answer period. Our first panelist is Mark Crane who, upon graduation from Harvard Law School, became associated with and later a partner of Hopkins, Sutter, Owens, Mulroy and Davis of Chicago. Despite a very busy life as a litigator in antitrust and other commercial areas, Mark has found time to devote himself to such activities as the Antitrust Section of the Illinois Bar Association, of which he is the former Chairman, and our Criminal Practice and Procedure Committee of this Section. Last May Mark testified on both of these bills before the Senate Subcommittee considering them, and at the conclusion of his testimony Senator Hruska and the Senate staff congratulated him on the contribution that he had made to their work. You will hear why in just one moment. I give you Mr. Crane. SUBSTANTIVE CHANGES By MARK CRANE Member of the Illinois Bar The United States Senate currently has before it two proposals to establish a Federal Criminal Code. Senate Bill 1 (S.1) was drafted by the staff of the Subcommittee on Reform of the Federal Criminal Laws, and is commonly known as the McClellan Bill after the Subcommittee's chairman. Senate Bill 1400 (S.1400) was drafted by a task force in the Justice Department and represents the Administration's proposal for a Federal Criminal Code. Although both S.1 and S.1400 were stimulated by the Final Report of the National Commission on Reform of Federal Criminal Laws (issued in 1971), they are substantially different in their antitrust impact. Both affect the antitrust laws by changing the standards of criminal antitrust liability, but the havoc wreaked by S.1 is far greater. One reason for that is that S.1 purports to amend the antitrust laws themselves, in addition to impacting upon them by overlaying certain common provisions. Deletion Of Attempts To Section 316(a)2 amends Section 2 of the Sherman Act to strike out the words "or attempt to monopolize". The purpose of this deletion is apparently to make it clear that an attempt to monopolize falls within the general section on criminal attempts-Section 1-2A4. Such an intention was indicated by Senator McClellan's observation that "the general provision on attempt is applicable to every federal crime except as specifically excluded in the section on a specific offense" and will "eliminate the need for special attempt statutes".1 Putting aside for the moment the substantial changes that Section 1-2A4 would make in the substantive law of attempts to monopolize which I will discuss later, a collateral effect of deleting from Section 2 of the Sherman 193 CONG. REC. S-569 (daily ed. Jan. 13, 1973, Vol. 119, No. 6). 215 U.S.C. §15. 399 |