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For more than thirty years, the Tunney Act has governed the judicial review and entry of antitrust consent decrees proposed by the U.S. Department of Justice Antitrust Division (DOJ). For that entire time, the Act has been a source of controversy, due largely to the open-ended, amorphous nature of the statute and the ambiguities inherent in it. The Act appears to yield almost unlimited discretion to district judges, and different judges have approached their task under the Act in very different ways. Judicial attempts to clarify the Act or provide more direction and legislative amendments in 2004 have done little to help resolve the problem. Controversies flare up at almost regular intervals, and the latest eruption has been in the context of the district court's review of the proposed consent decrees in the SBC/AT&T and Verizon/MCI mergers: the extensive Tunney Act proceedings lasted roughly a year and were contentious. The district court's approach and its ultimate opinion approving the proposed decrees did not conclusively resolve all the issues and may ultimately serve to stir up more controversy.
The Tunney Act, passed in 1974, implemented a set of procedures that must be followed prior to a district court's entry of an antitrust consent decree. The Act also required that the court find the decree to be in the "public interest" before entering it. But although the Act provided a list of factors to consider, it did not define "public interest" nor did it provide much guidance how a court ought to conduct its inquiry procedurally. The Act did not state what deference to the DOJ the court ought to give, if any, nor in what circumstances; it did not make the scope or standard of review explicit; it left procedures almost entirely to the discretion of individual judges; and it left unclear exactly what is to be achieved by the review and, relatedly, when a court should reject a decree. Case law has developed over the past three decades to fill some of the statutory gaps, but it is not nearly as extensive or clear as in similar areas of law, such as the judicial review of administrative decisions.1 Moreover, the Tunney Act case law has been criticized by some academics and Congress,2 which made...