Unconstitutional Uncertainty An Appraisal (1955)

policies to a concrete net remainder of duty or right. The administrative function in such a case is to translate the abstract statute into a concrete cease and desist order. But here the Commission found it administratively more convenient to blanket an industry under a comprehensive prohibition in bulk -an undiscriminating prohibition of discrimination . . . this not only fails to give the precision and concreteness of legal duties to the abstract policies of the Act, it really promulgates an inaccurate partial paraphrase of its indeterminate generalities. Instead of completing the legislation by an order which will clarify the petitioner's duty, it confounds confusion by literally ordering it to cease what the statute permits it to do. In the civil liberties area the Court refuses to permit the delegation of administrative censorship or licensing powers without narrow standards. In the economics area, at least in recent years, delegation seems to be permitted no matter how vague the standards, witness the Ruberoid case. Assuming that the distinction is valid, does it necessarily follow that the administrator in the economics area is under no obligation to fill in the gaps of the uncertain statute, to make clear the obligations of those to whom the statute is applicable? Justice Jackson's thesis in the Boyce and Ruberoid cases was to require administrative regulations and orders to be definite, otherwise to deny them judicial sanction. In recent years there has been great progress in the theoretical basis of administrative law. By the Administrative Procedure Act, the practices of administrative rule making and adjudication are controlled and regulated. By the Federal Register Act expensive and comprehensive arrangements have been made to assure that agency rules and orders are widely promulgated. What earthly good is all this if no one can understand the rules and orders after they are issued? The problems of corporations and business men in a bureaucratic society are by no means confined to administrative regulations and They also are faced with innumerable statutory requirements. The various anti-trust acts are examples. Can a large and aggressive corporation possibly go about its business without violating these acts or at least risk1955] CORNELL LAW QUARTERLY ing prosecution? The objective of the Sherman Act is to enforce competition. The objective of the Clayton and Robinson-Patman Acts is to protect individual businesses against the normal effects of competition. Caught in the middle is the corporation, damned under one statute if it is considerate of its competitors, damned under others if it is not. If it establishes a nation-wide uniform pricing system, it runs the risk of prosecution under the Sherman Act. If these prices happen to be the same as those of a competitor, proof of a violation may be ridiculously simple under the doctrine of conscious parallelism. If it attempts to compete in the traditional fashion by varying its prices to attract customers, it runs the risk of a Commission proceeding, or, even worse, a treble-damage suit. Proof in the Robinson-Patman proceeding is also simple, since a showing of discrimination in interstate commerce (seemingly any difference in prices for the same articles) is prima facie proof of violation. The vagueness of the Robinson-Patman Act is not only in the problem of its construction in context with the Sherman Act. It also is full of ambiguities and vague provisions. It uses, for example, the terms discriminate, price and competition without definition, and, 'as Justice Jackson pointed out in the Ruberoid case, prohibits only those discriminations which meet three statutory conditions and survive five statutory provisos. The statutes dealt with by Justice Holmes in the International Harvester case seem simple in comparison. The Court in the Ruberoid case upheld a vague Federal Trade Commission order issued under the Robinson-Patman Act. What of the standards of the Act itself? Justice Jackson and the Second Circuit thought the Act vague.114 Justice Jackson's dissent was seemingly based upon the premise that the Court was bound to accept the vague Robinson-Patman Act. He was concerned only with the required certainty of cease and desist orders issued under the Act. He shrugged off the vagueness of the Act by saying that it could be cured by definite orders of the Commission, since there would be no public sanction until after the order was issued. But is this an adequate basis for accepting this statutory vagueness? Justice Jackson failed to discuss the very real fact of private sanctions. Others than the Federal Trade Commission can enforce the Act. Competitors can enforce it with treble-damage actions without awaiting the benefit of clarifying Commission orders. 5 114 See also, United States v. New York Great A & P Co., 67 F. Supp. 626, 676-677' (E.D. Il. 1946), where the court, after a discussion of the elusive uncertainty of the Act, doubted that any judge would assert that he knew exactly what is a violation in any and all circumstances. 115 E.g., Sun Cosmetic Shoppe v. Elizabeth Arden Sales Corp., 81 F. Supp. 547 (S.D.N.Y. 1948) ; see Bruce's Juices v. American Can Co., 330 U.S. 743, 750 (1947). [Vol. 4