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52 Nw. U. L. Rev. 567 (1957-1958)
Merger Statute: Sleeping Giant or Sleeping Beauty

handle is hein.journals/illlr52 and id is 577 raw text is: Northwestern University LAW REVIEW VOLUME 52 NOVEMBER-DECEMBER, 1957 NUMBER 5 The Merger Statute: Sleeping Giant or Sleeping Beauty? By John C. Stedman* A. The Dupont-General Motors Decision O N June 3, 1957, when Justice Brennan, speaking for a 4-judge majority, held that Dupont had violated section 7 of the Clayton Act as a result of acquiring almost 40 years ago 23% of General Motors' stock,1 he created quite a stir. Justice Burton, in his dissenting opinion, summarized the effect of the decision as follows: All that is required, if this case is to be our guide, is that some court in some future year be persuaded that a reason- able probability then exists that an advantage over competi- tors in a narrowly construed market may be obtained as a result of the stock interest. Thus, over 40 years after the en- actment of the Clayton Act, it now becomes apparent for the first time that § 7 has been a sleeping giant all along. Every corporation which has acquired a stock interest in another cor- poration after the enactment of the Clayton Act in 1914, and which has had business dealings with that corporation is ex- posed, retroactively, to the bite of the newly discovered teeth of § 7.2 Outside response ran the gamut from simple shock and salutes to Justice Burton's scathing arraignment3 of the majority opinion, to charges that Justice Brennan ignored the facts, that he ignored the law, that the Court should have decided the case on Sherman Act grounds only and pretended that the Clayton Act did not exist, that the case should and would shortly be overruled, that this was just another example of the law's stultifying uncertainty in the * Professor of Law, University of Wisconsin, Associate Counsel, Subcommittee on Patents, Trademarks, and Copyrights of the Senate Judiciary Committee, 1955-57, B.A., Univ. of Wisconsin, 1928, LL.B., 1933; LL.M., Columbia Univ., 1940. 1. United States v. E. I. du Pont de Nemours and Co., 353 U.S. 586 (1957). Chief Justice Warren and Justices Black and Douglas concurred in the majority opinion; Justices Burton and Frankfurter dissented; Justices Clark, Harlan and Whittaker did not participate. 2. Id. at 611. 3. The words are Arthur Krocks, not mine. See In The Nation, N.Y. Times, June 4, 1957, p. 32, col. 5.

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