The genius of the Sherman Act has been said to lie in its generality and adaptability. Thus the act has been successfully applied for almost three-quarters of a century to an economy that has been more dynamic than during any comparable period in history.
In 1912, twenty-two years after passage of the act, consent decrees began to be frequently used as a means of settling, without trial, civil antitrust suits brought by the government. Their use became even more popular as a result of the passage in 1914 of section 5 of the Clayton Act. It permitted private plaintiffs seeking triple damages for alleged antitrust injuries to use final judgments in antitrust cases instituted by the government as "prima facie evidence . . . as to all matters respecting which said judgment of decree would be an estoppel as between the parties thereto." But the section contained a proviso that it should "not apply to consent judgments or decrees entered before any testimony has been taken." The effect of this proviso was to give defendants in antitrust cases a real incentive to compose their difficulties with the government.
Victor H. Kramer,
Modification of Consent Decrees: A Proposal to the Antitrust Division,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol56/iss7/2