gain trial experience of an amount and at a level of responsibility usually
denied young men in private firms. (Thus, it is reported that the recent
reduction in the level of the FTC's litigation activity has made it
difficult for the Commission to recruit good young lawyers.) The value
of their trial experience to future employers is unaffected by whether
the cases tried promote or impair the welfare of society. It is the ex-
perience of trying cases, the more the better, not the social payoff from
the litigation, that improves the professional skills and earnings pros-
pects of government lawyers.
Given the absence of any mechanism for effectively conforming the
private interests of FTC personnel to ' the social interest in consumer
protection, it is hardly surprising that over the years the FTC has
devoted its principal efforts to bringing cases that, if our sample is at
all representative, do not promote any coherent public policy, at -the
behest of corporations, trade associations, and trade unions whose moti-
vation is at best to shift the costs of their private litigation to the tax-
payer and at worst to harass competitors. By taking the part of well
organized economic pressure groups, representing established firms and
their employees, rather than of new entrants, foreigners, and the unor-
ganized, largely silent consumer, the FTC commissioners and staff have
minimized the friction and work that a genuine dedication to consumer
interests would have entailed. By concentrating on trivial fraud cases,
the Commission and its staff have created the illusion of tangible results,
while minimizing controversy. And by concentrating its antitrust activ-
ities not in monopolistic or oligopolistic industries, but in the most
competitive industries in the American economy, such as food, textile.
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and retail and wholesale distribution, and by applying antitrust prin-
ciples to shield powerful organized economic blocs in those industries
(such as food brokers and retail gasoline dealers) from the competitive
gale, the Commission has curried favor with the groups whose power
to affect the fortunes of Commission personnel is greatest.
V.
The alternative to a trade commission is greater reliance on market
processes and on the system of judicial rights and remedies that provides
the framework of transactions in the market. A comparison of these al-
ternative institutional arrangements reveals some interesting contrasts
between courts and the Commission. One is in regard to capacity for
modernization and reform. During the more than 50 years that the
FTC has been adrift in its backwater, enormous strides in reducing the
cost and increasing the efficacy of judicial processes have been made.
Judicial procedure has been radically simplified; small claims courts
have been created; new rights of action have been declared— recently, at
the state level, in one of the areas, protection against fraud, where the
FTC has been floundering; and Neighborhood Legal Services have been
created to assure meaningful legal remedies for poor people. One can
criticize some of these changes, and certainly much remains to be done.
In particular, it is shocking that successful litigants are generally unable
to recover their legal expenses from the losing party. But the crucial
fact is that the updating of the judicial process appears to be proceeding
more rapidly than the reform of the administrative process.
A second source of strength in the judicial process is the prestige that
judges enjoy in our society. It is significant that judicial appointment is
normally a terminal appointment, not a steppingstone. In the federal
court system, certainly, it is rare for judges to leave the bench for private
practice. I do not mean to imply that members of administrative agencies
should be given life tenure. Considering the caliber of the appointees,
which I do not think would be materially improved by such a system, the
results would be disastrous. For reasons apparently deeply rooted in the
attitudes of lawyers, it is impossible to attract many first-rate people to a
lifetime career as a member of an administrative agency. Until those
attitudes change, life tenure for agency members is out of the question,
and judicial enforcement of rules against fraud will continue to have this
marked advantage over administrative: in striving to establish a proper
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balance between the rights of sellers and consumers, judges, with rare
exceptions, are not going to be influenced by considrations of the impact
of their decision upon a future career at the bar.
It is time to sum up. In the real world, a choice among possible insti-
tutional arrangements for dealing with social problems is a choice among
highly imperfect alternatives. A free market backed up by private
judicial remedies will not eliminate all frauds, nor will the Antitrust
Division acting through the courts eliminate all restraints of trade. It
does not follow that the administrative process should be used as an
alternative or supplement to these approaches.
Since many of the basic goals and policies of the institution seem to
me misconceived, I cannot regard proposals for improvements in its opera-
tional efficiency without mixed feelings. On the other hand, I do not
believe that a proposal for abolition of the FTC can be justified on the
basis of the kind of evidence that I have been able to assemble for the
purposes of this statement. I would propose, however, a policy of
(a) freezing the Commission's appropriations at their present level and
(b) withholding from it any new responsibilities. It is scandalous to
allow so dubious an enterprise to continue to wax in size and power. The
procedure that I suggest would at least force the agency and its supporters
to attempt to justify its existence and actions. If no justification were
forthcoming, the freeze would be maintained and the forces of inflation
and economic growth would gradually effect a practical repeal of the
regulatory scheme.
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