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United States v. E.I. Du Pont De Nemours & Co., 366 U.S. 316 (1961)

American Government Special Collections Reference Desk

American Government Topics:  DuPont

United States v. E.I. Du Pont De Nemours & Co., 366 U.S. 316 (1961)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   UNITED STATES V. E.I. DU PONT DE NEMOURS & CO. 

Case #: 366US316


NO. 55.  ARGUED FEBRUARY 20-21, 1961 - DECIDED MAY 22, 1961 - 177 F.
SUPP. 1, AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS. 


IN THIS CIVIL ANTITRUST PROCEEDING, THIS COURT HELD THAT ACQUISITION
BY THE DU PONT COMPANY OF 23% OF THE COMMON STOCK OF GENERAL MOTORS
CORPORATION HAD LED TO THE INSULATION FROM FREE COMPETITION OF MOST OF
THE GENERAL MOTORS MARKET IN AUTOMOBILE FINISHES AND FABRICS AND TENDED
TO CREATE A MONOPLY OF A LINE OF COMMERCE, IN VIOLATION OF SEC. 7 OF
THE CLAYTON ACT.  THEREFORE, THIS COURT REVERSED THE DISTRICT COURT'S
JUDGMENT DISMISSING THE COMPLAINT AND REMANDED THE CASE TO THAT COURT
FOR A DETERMINATION OF THE EQUITABLE RELIEF NECESSARY AND APPROPRIATE
IN THE PUBLIC INTEREST.  353 U.S. 586.  AFTER THE TAKING OF FURTHER
EVIDENCE, PERTAINING MOSTLY TO THE TAX AND MARKET CONSEQUENCES TO THE
SHAREHOLDERS OF THE TWO COMPANIES, THE DISTRICT COURT DECLINED TO
REQUIRE DU PONT TO DIVEST ITSELF COMPLETELY OF THE GENERAL MOTORS
STOCK, AS URGED BY THE GOVERNMENT, AND SOUGHT TO SATISFY THE
REQUIREMENTS OF THIS COURT'S MANDATE BY REQUIRING DU PONT TO TRANSFER
ITS VOTING RIGHTS IN MOST OF THE GENERAL MOTORS STOCK TO CERTAIN OF DU
PONT'S SHAREHOLDERS, BY ENJOINING THE TWO COMPANIES FROM HAVING ANY
PREFERENTIAL OR DISCRIMINATORY TRADE RELATIONS WITH EACH OTHER AND BY
VARIOUS OTHER INJUNCTIVE PROVISIONS DESIGNED TO PREVENT DU PONT FROM
EXERCISING ANY CONTROL OVER THE MANAGEMENT OF GENERAL MOTORS.  HELD:
THIS REMEDY IS NOT ADEQUATE, AND THE DISTRICT COURT IS DIRECTED TO
PROCEED EXPEDITIOUSLY TO ENTER A DECREE REQUIRING DU PONT TO DIVEST
ITSELF COMPLETELY OF THE GENERAL MOTORS STOCK WITHIN NOT TO EXCEED 10
YEARS FROM THE EFFECTIVE DATE OF THE DECREE.  PP. 318-335. 

(A)  WHEN A VIOLATION OF THE ANTITRUST LAWS HAS BEEN PROVED, THE
INITIAL RESPONSIBILITY TO FASHION AN APPROPRIATE REMEDY LIES WITH THE
DISTRICT COURT, AND THIS COURT ACCORDS DUE REGARD AND RESPECT TO THE
CONCLUSION OF THE DISTRICT COURT; BUT THIS COURT HAS A DUTY TO BE SURE
THAT A DECREE IS FASHIONED WHICH WILL EFFECTIVELY REDRESS THE
VIOLATIONS OF THE ANTITRUST LAWS.  PP. 322-325. 

(B)  SINCE THE DECREE IN THIS CASE WAS FASHIONED BY THE DISTRICT
COURT IN OBEDIENCE TO THE JUDGMENT SENT TO IT BY THIS COURT AFTER
REVERSAL OF THE DISTRICT COURT'S JUDGMENT DISMISSING THE GOVERNMENT'S
COMPLAINT, THIS COURT HAS PLENARY POWER TO DETERMINE WHETHER ITS OWN
JUDGMENT WAS SCRUPULOUSLY AND FULLY CARRIED OUT.  PP. 325-326. 

(C)  IN CIVIL PROCEEDINGS, COURTS ARE NOT AUTHORIZED TO PUNISH
ANTITRUST VIOLATORS, AND RELIEF MUST NOT BE PUNITIVE; BUT COURTS ARE
REQUIRED TO DECREE RELIEF EFFECTIVE TO REDRESS THE VIOLATIONS AND
RESTORE COMPETITION, WHATEVER THE ADVERSE EFFECT OF SUCH A DECREE ON
PRIVATE INTERESTS.  PP. 326-328. 

(D)  IN THIS CASE, THE PROPOSED PARTIAL DIVESTITURE THROUGH THE
TRANSFER OF VOTING RIGHTS WOULD NOT BE AN EFFECTIVE REMEDY; AND,
NOTWITHSTANDING THE ADVERSE TAX AND MARKET CONSEQUENCES WHICH THE
DISTRICT COURT FOUND WOULD RESULT, THE GOVERNMENT IS ENTITLED TO A
DECREE DIRECTING COMPLETE DIVESTITURE - A REMEDY PECULIARLY APPROPRIATE
IN CASES OF STOCK ACQUISITIONS WHICH VIOLATE SEC. 7 OF THE CLAYTON
ACT.  PP. 326-333. 

(E)  THE ALTERNATIVE, SUGGESTED BELATEDLY BY DU PONT, THAT ITS
GENERAL MOTORS STOCK BE DISENFRANCHISED, WOULD NOT PROVIDE EFFECTIVE
RELIEF, AND IT MIGHT HAVE UNDESIRABLE EFFECTS ON THE CAPITAL STRUCTURE,
MANAGEMENT AND CONTROL OF GENERAL MOTORS.  P. 333. 

(F)  THE INJUNCTIVE PROVISIONS OF THE DISTRICT COURT'S DECREE WOULD
NOT ADEQUATELY REMOVE THE OBJECTIONS TO THE EFFECTIVENESS OF ITS MAIN
PROVISION FOR THE TRANSFER OF VOTING RIGHTS, AND THE PUBLIC IS ENTITLED
TO THE SURER, CLEANER REMEDY OF COMPLETE DIVESTITURE.  PP. 333-334. 

(G)  ONCE THE GOVERNMENT HAS SUCCESSFULLY BORNE THE CONSIDERABLE
BURDEN OF ESTABLISHING A VIOLATION OF THE ANTITRUST LAWS, ALL DOUBTS AS
TO THE REMEDY ARE TO BE RESOLVED IN ITS FAVOR.  P. 334. 

(H)  THE DISTRICT COURT'S DECREE IS VACATED IN ITS ENTIRETY, EXCEPT
AS TO THE PROVISIONS ENJOINING DU PONT ITSELF FROM EXERCISING VOTING
RIGHTS IN RESPECT OF ITS GENERAL MOTORS STOCK.  PP. 334-334. 

(I)  IN ORDER THAT THIS PROTRACTED LITIGATION MAY BE CONCLUDED AS
SOON AS POSSIBLE, THE DISTRICT COURT IS DIRECTED TO PROCEED
EXPEDITIOUSLY TO FORMULATE AND ENTER A DECREE PROVIDING FOR THE
COMPLETE DIVESTITURE BY DU PONT OF ITS GENERAL MOTORS STOCK, TO
COMMENCE WITHIN 90 DAYS, AND TO BE COMPLETED WITHIN NOT TO EXCEED 10
YEARS, OF THE EFFECTIVE DATE OF THE DECREE.  P. 335. 

UNITED STATES V. E. I. DU PONT DE NEMOURS & CO. ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS. 

MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 

THE UNITED STATES FILED THIS ACTION IN 1949 IN THE DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS.  THE COMPLAINT ALLEGED THAT THE
OWNERSHIP AND USE BY APPELLEE E.I. DU PONT DE NEMOURS & CO. OF
APPROXIMATELY 23 PERCENT OF THE VOTING COMMON STOCK OF APPELLEE GENERAL
MOTORS CORPORATION WAS A VIOLATION OF SECTIONS 1 AND 2 OF THE SHERMAN
ACT, 15 U.S.C. SECS. 1, 2, AND OF SECTION 7 OF THE CLAYTON ACT, 15
U.S.C. SEC. 18.  AFTER THE TRIAL, THE DISTRICT COURT DISMISSED THE
COMPLAINT.  126 F. SUPP. 235 (D.C.N.D. ILL. 1954).  ON THE GOVERNMENT'S
APPEAL, WE REVERSED.  WE HELD THAT DU PONT'S ACQUISITION OF THE 23
PERCENT OF GENERAL MOTORS STOCK HAD LED TO THE INSULATION FROM FREE
COMPETITION OF MOST OF THE GENERAL MOTORS MARKET IN AUTOMOBILE FINISHES
AND FABRICS, WITH THE RESULTANT LIKELIHOOD, AT THE TIME OF SUIT, OF THE
CREATION OF A MONOPOLY OF A LINE OF COMMERCE, AND, ACCORDINGLY, THAT DU
PONT HAD VIOLATED SEC. 7 OF THE CLAYTON ACT.  UNITED STATES V. E.I. DU
PONT DE NEMOURS & CO., 353 U.S. 586 (1957).  (FN1)  WE DID NOT,
HOWEVER, DETERMINE WHAT EQUITABLE RELIEF WAS NECESSARY IN THE PUBLIC
INTEREST.  INSTEAD, WE OBSERVED THAT "THE DISTRICT COURTS  ..  ARRE
CLOTHED 'WITH LARGE DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE
EXIGENCIES OF THE PARTICULAR CASE.'  INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 400-401," AND REMANDED THE CAUSE TO THE DISTRICT
COURT "FOR A DETERMINATION, AFTER FURTHER HEARING, OF THE EQUITABLE
RELIEF NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST TO ELIMINATE
THE EFFECTS OF THE ACQUISITION OFFENSIVE TO THE STATUTE."  353 U.S., AT
607-608. 

ON REMAND, THE DISTRICT COURT INVITED THE GOVERNMENT TO SUBMIT A PLAN
OF RELIEF WHICH IN ITS OPINION WOULD BE EFFECTIVE TO REMEDY THE
VIOLATION.  THE COURT ALSO APPOINTED TO AMICI CURIAE TO REPRESENT THE
INTERESTS OF GENERAL MOTORS AND DU PONT SHAREHOLDERS, RESPECTIVELY,
MOST OF WHOM, OF COURSE, HAD NOT BEEN MADE PARTIES TO THIS LITIGATION. 
THE GOVERNMENT SUBMITTED A PROPOSED PLAN OF RELIEF.  THAT PLAN INCLUDED
DIVERSE FORMS OF INJUNCTIVE RELIEF, BUT ITS PRINCIPAL FEATURE WAS A
REQUIREMENT THAT WITHIN 10 YEARS THE DU PONT COMPANY COMPLETELY DIVEST
ITSELF OF ITS APPROXIMATELY 63 MILLION GENERAL MOTORS SHARES.  THE
GOVERNMENT PROPOSED THAT ABOUT TWO-THIRDS OF THESE SHARES BE
DISTRIBUTED PRO RATA TO THE GENERALITY OF DU PONT SHAREHOLDERS IN THE
FORM OF DIVIDENDS OVER THE 10-YEAR PERIOD.  THE OTHER ONE-THIRD OF DU
PONT'S GENERAL MOTORS HOLDINGS - STOCK WHICH WOULD HAVE GONE TO
APPELLEES CHRISTIANA SECURITIES COMPANY AND DELAWARE REALTY AND
INVESTMENT COMPANY, HOLDING COMPANIES LONG IDENTIFIED WITH THE DU PONT
FAMILY ITSELF - WERE TO GO TO A COURT-APPOINTED TRUSTEE, TO BE SOLD
GRADUALLY OVER THE SAME 10-YEAR PERIOD.  DU PONT OBJECTED THAT THE
GOVERNMENT'S PLAN OF COMPLETE DIVESTITURE ENTAILED HARSH INCOME-TAX
CONSEQUENCES FOR DU PONT STOCKHOLDERS AND, IF ADOPTED, WOULD ALSO
THREATEN SERIOUSLY TO DEPRESS THE MARKET VALUE OF DU PONT AND GENERAL
MOTORS STOCK.  DU PONT THEREFORE PROPOSED ITS OWN PLAN DESIGNED TO
AVOID THESE RESULTS.  THE SALIENT FEATURE OF ITS PLAN WAS SUBSTITUTION
FOR THE GOVERNMENT'S PROPOSED COMPLETE DIVESTITURE OF A PLAN FOR
PARTIAL DIVESTITURE IN THE FORM OF A SO-CALLED "PASS THROUGH" OF VOTING
RIGHTS, WHEREBY DU PONT WOULD RETAIN ALL ATTRIBUTES OF OWNERSHIP OF THE
GENERAL MOTORS STOCK, INCLUDING THE RIGHT TO RECEIVE DIVIDENDS AND A
SHARE OF ASSETS ON LIQUIDATION, EXCEPT THE RIGHT TO VOTE.  THE VOTE WAS
TO BE "PASSED THROUGH" TO DU PONT'S SHAREHOLDERS PROPORTIONALLY TO
THEIR HOLDINGS OF DU PONT'S OWN SHARES, EXCEPT THAT CHRISTIANA AND
DELAWARE WOULD "PASS THROUGH" THE VOTES ALLOCABLE TO THEM TO THEIR OWN
SHAREHOLDERS.  THE AMICI CURIAE ALSO PROPOSED PLANS OF COMPLIANCE,
SUBSTANTIALLY EQUIVALENT TO THE DU PONT PLAN.  THE AMICUS REPRESENTING
THE GENERALITY OF DU PONT SHAREHOLDERS PROPOSED IN ADDITION A PROGRAM
OF SO-CALLED "TAKE-DOWNS," BY WHICH DU PONT SHAREHOLDERS WOULD BE
ALLOWED TO EXCHANGE THEIR DU PONT COMMON STOCK FOR A NEW CLASS OF DU
PONT "SPECIAL COMMON," PLUS THEIR PRO RATA SHARE OF DU PONT-HELD
GENERAL MOTORS COMMON STOCK. 

THE DISTRICT COURT HELD SEVERAL WEEKS OF HEARINGS.  THE EVIDENCE
TAKEN AT THE HEARINGS, LARGELY OF EXPERT WITNESSES, FILLS SOME 3,000
PAGES IN THE RECORD BEFORE US, AND, TOGETHER WITH THE NUMEROUS
FINANCIAL CHARTS AND TABLES RECEIVED AS EXHIBITS, BEARS MAINLY NOT ON
THE COMPETITION-RESTORING EFFECT OF THE SEVERAL PROPOSALS, BUT RATHER
ON WHICH PROPOSAL WOULD HAVE THE MORE, AND WHICH THE LESS, SERIOUS TAX
AND MARKET CONSEQUENCES FOR THE OWNERS OF THE DU PONT AND GENERAL
MOTORS STOCK.  THE DISTRICT COURT CONCLUDED THAT ALTHOUGH "  ..  THHERE
IS NO NEED FOR THE COURT TO RESOLVE THE CONFLICT IN THE EVIDENCE AS TO
HOW SEVERE THOSE CONSEQUENCES WOULD BE, THE COURT IS PERSUADED BEYOND
ANY DOUBT THAT A JUDGMENT OF THE KIND PROPOSED BY THE GOVERNMENT WOULD
HAVE VERY SERIOUS ADVERSE CONSEQUENCES."  177 F. SUPP. 1, 42 (D.C.N.D.
ILL. 1959).  THE COURT FOR THIS REASON REJECTED THE GOVERNMENT'S PLAN
AND ADOPTED THE DU PONT PROPOSAL, WITH SOME SIGNIFICANT MODIFICATIONS. 
THE "PASS THROUGH" OF VOTING RIGHTS, FOR EXAMPLE, WAS SO LIMITED THAT
NEITHER CHRISTIANA, DELAWARE, NOR THEIR OFFICERS AND DIRECTORS (PLUS
RESIDENT MEMBERS OF THE LATTER'S FAMILIES), SHOULD BE ABLE TO VOTE ANY
OF THE DU PONT-HELD GENERAL MOTORS STOCK; GENERAL MOTORS SHARES
ALLOCABLE TO THE TWO COMPANIES OR TO THEIR OFFICERS AND DIRECTORS, OR
TO THE OFFICERS AND DIRECTORS OF DU PONT, OR TO RESIDENT MEMBERS OF THE
FAMILIES OF THE OFFICERS AND DIRECTORS OF THE SEVERAL COMPANIES, WERE
TO BE STERILIZED, VOTED BY NO ONE.  DU PONT, CHRISTIANA, AND DELAWARE
WERE FORBIDDEN TO ACQUIRE ANY ADDITIONAL GENERAL MOTORS STOCK.  DU PONT
AND GENERAL MOTORS MIGHT NOT HAVE ANY PREFERENTIAL OR DISCRIMINATORY
TRADE RELATIONS OR CONTRACTS WITH EACH OTHER.  NO OFFICER OR DIRECTOR
OF DU PONT, CHRISTIANA, OR DELAWARE MIGHT ALSO SERVE AS AN OFFICER OR
DIRECTOR OF GENERAL MOTORS.  NOR MIGHT DU PONT, CHRISTIANA, OR DELAWARE
NOMINATE OR PROPOSE ANY PERSON TO BE A GENERAL MOTORS OFFICER OR
DIRECTOR, OR SEEK IN ANY WAY TO INFLUENCE THE CHOICE OF PERSONS TO FILL
THOSE POSTS.  THE GOVERNMENT OBJECTED THAT WITHOUT A PROVISION ORDERING
COMPLETE DIVESTITURE THE DECREE, ALTHOUGH OTHERWISE SATISFACTORY, WAS
INADEQUATE TO REDRESS THE ANTITRUST VIOLATION, AND FILED ITS APPEAL
HERE UNDER SEC. 2 OF THE EXPEDITING ACT, 15 U.S.C. SEC. 29.  WE NOTED
PROBABLE JURISDICTION.  362 U.S. 986 (1960). 

A THRESHOLD QUESTION - AND ONE WHICH, ALTHOUGH SUBSIDIARY, IS MOST
IMPORTANT - CONCERNS THE SCOPE OF OUR REVIEW OF THE DISTRICT COURT'S
DISCHARGE OF THE DUTY DELEGATED BY OUR JUDGMENT TO FORMULATE A DECREE. 
IN OUR FORMER OPINION WE ALLUDED TO THE "LARGE DISCRETION" OF THE
DISTRICT COURTS IN MATTERS OF REMEDY IN ANTITRUST CASES.  MANY OPINIONS
OF THE COURT IN SUCH CASES OBSERVE THAT "THE FORMULATION OF DECREES IS
LARGELY LEFT TO THE DISCRETION OF THE TRIAL COURT  ..  ,"" MARYLAND &
VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458, 473
(1960); "IN FRAMING RELIEF IN ANTITRUST CASES, A RANGE OF DISCRETION
RESTS WITH THE TRIAL JUDGE," BESSER MFG. CO. V. UNITED STATES, 343 U.S.
444, 449 (1952); "THE DETERMINATION OF THE SCOPE OF THE DECREE TO
ACCOMPLISH ITS PURPOSE IS PECULIARLY THE RESPONSIBILITY OF THE TRIAL
COURT," UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76, 89
(1950); "THE FRAMING OF DECREES SHOULD TAKE PLACE IN THE DISTRICT
RATHER THAN IN APPELLATE COURTS," INTERNATIONAL SALT CO. V. UNITED
STATES, 332 U.S. 392, 400 (1947).  THE COURT HAS ON OCCASION SAID THAT
DECREES WILL BE UPHELD IN THE ABSENCE OF A SHOWING OF AN ABUSE OF
DISCRETION.  SEE, E.G., MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V.
UNITED STATES, SUPRA, P. 473; UNITED STATES V. W.T. GRANT CO., 345 U.S.
629, 634 (1953); TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S.
593 (1951); (FN2) UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319, 334
335 (1947); UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173, 185
(1944).  (FN3)  THESE EXPRESSIONS ARE NOT, HOWEVER, TO BE UNDERSTOOD TO
IMPLY A NARROW REVIEW HERE OF THE REMEDIES FASHIONED BY THE DISTRICT
COURTS IN ANTITRUST CASES.  ON THE CONTRARY, OUR PRACTICE, PARTICULARLY
IN CASES OF A DIRECT APPEAL FROM THE DECREE OF A SINGLE JUDGE, IS TO
EXAMINE THE DISTRICT COURT'S ACTION CLOSELY TO SATISFY OURSELVES THAT
THE RELIEF IS EFFECTIVE TO REDRESS THE ANTITRUST VIOLATION PROVED. 
"THE RELIEF GRANTED BY A TRIAL COURT IN AN ANTITRUST CASE AND BROUGHT
HERE ON DIRECT APPEAL, THUS BY-PASSING THE USUAL APPELLATE REVIEW, HAS
ALWAYS HAD THE MOST CAREFUL SCRUTINY OF THIS COURT.  THOUGH THE RECORDS
ARE USUALLY MOST VOLUMINOUS AND THEIR REVIEW EXCEEDINGLY BURDENSOME, WE
HAVE PAINSTAKINGLY UNDERTAKEN IT TO MAKE CERTAIN THAT JUSTICE HAS BEEN
DONE."  INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242, 253
(1959); SEE ALSO ID., AT 263 (DISSENTING OPINION).  WE HAVE MADE IT
CLEAR THAT A DECREE FORMULATED BY A DISTRICT COURT IS NOT "SUBJECT ONLY
TO REVERSAL FOR GROSS ABUSE.  RATHER WE HAVE FELT AN OBLIGATION TO
INTERVENE IN THIS MOST SIGNIFICANT PHASE OF THE CASE WHEN WE CONCLUDED
THERE WERE INAPPROPRIATE PROVISIONS IN THE DECREE."  UNITED STATES V.
UNITED STATES GYPSUM CO., SUPRA, P. 89.   IN SUM, WE ASSIGN TO THE
DISTRICT COURTS THE RESPONSIBILITY INITIALLY TO FASHION THE REMEDY, BUT
RECOGNIZE THAT WHILE WE ACCORD DUE REGARD AND RESPECT TO THE CONCLUSION
OF THE DISTRICT COURT, WE HAVE A DUTY OURSELVES TO BE SURE THAT A
DECREE IS FASHIONED WHICH WILL EFFECTIVELY REDRESS PROVED VIOLATIONS OF
THE ANTITRUST LAWS.  THE PROPER DISPOSITION OF ANTITRUST CASES IS
OBVIOUSLY OF GREAT PUBLIC IMPORTANCE, AND THEIR REMEDIAL PHASE, MORE
OFTEN THAN NOT, IS CRUCIAL.  FOR THE SUIT HAS BEEN A FUTILE EXERCISE IF
THE GOVERNMENT PROVES A VIOLATION BUT FAILS TO SECURE A REMEDY ADEQUATE
TO REDRESS IT.  "A PUBLIC INTEREST SERVED BY SUCH CIVIL SUITS IS THAT
THEY EFFECTIVELY PRY OPEN TO COMPETITION A MARKET THAT HAS BEEN CLOSED
BY DEFENDANTS' ILLEGAL RESTRAINTS.  IF THIS DECREE ACCOMPLISHES LESS
THAN THAT, THE GOVERNMENT HAS WON A LAWSUIT AND LOST A CAUSE." 
INTERNATIONAL SALT CO. V. UNITED STATES, SUPRA, P. 401. 

OUR PRACTICE REFLECTS THE SITUATION CREATED BY THE CONGRESSIONAL
AUTHORIZATION, UNDER SEC. 2 OF THE EXPEDITING ACT, (FN4) OF A DIRECT
APPEAL TO THIS COURT FROM THE JUDGMENT OF RELIEF FASHIONED BY A SINGLE
JUDGE.  CONGRESS HAS DELIBERATELY TAKEN AWAY THE SHIELD OF INTERMEDIATE
APPELLATE REVIEW BY A COURT OF APPEALS, AND LEFT WITH US ALONE THE
RESPONSIBILITY OF AFFORDING THE PARTIES A REVIEW OF HIS DETERMINATION. 
(FN5)  THIS CIRCUMSTANCE IMPOSES A SPECIAL BURDEN UPON US, FOR, AS MR.
JUSTICE ROBERTS SAID FOR THE COURT, "  ..  ITT IS UNTHINKABLE THAT
CONGRESS HAS ENTRUSTED THE ENFORCEMENT OF A STATUTE OF SUCH FAR
REACHING IMPORTANCE TO THE JUDGMENT OF A SINGLE JUDGE, WITHOUT REVIEW
OF THE RELIEF GRANTED OR DENIED BY HIM," HARTFORD-EMPIRE CO. V. UNITED
STATES, 324 U.S. 570, 571 (1945), CLARIFYING 323 U.S. 386 (1945). 

THESE PRINCIPLES ALONE WOULD REQUIRE OUR CLOSE EXAMINATION OF THE
DISTRICT COURT'S ACTION.  BUT THE NECESSITY FOR THAT EXAMINATION IN
THIS CASE FURTHER APPEARS IN THE LIGHT OF ADDITIONAL CONSIDERATIONS. 
FIRST OF ALL, THE DECREE WAS FASHIONED IN OBEDIENCE TO THE JUDGMENT
WHICH WE SENT DOWN TO THE DISTRICT COURT AFTER OUR REVERSAL OF THAT
COURT'S DISMISSAL OF THE GOVERNMENT'S COMPLAINT.  WE HAVE PLENARY POWER
TO DETERMINE WHETHER OUR JUDGMENT WAS SCRUPULOUSLY AND FULLY CARRIED
OUT.  CHIEF JUSTICE TAFT, SPEAKING FOR THE COURT, SAID IN CONTINENTAL
INS. CO. V. UNITED STATES, 259 U.S. 156, 166 (1922), "WE DELEGATED TO
THE DISTRICT COURT THE DUTY OF FORMULATING A DECREE IN COMPLIANCE WITH
THE PRINCIPLES ANNOUNCED IN OUR JUDGMENT OF REVERSAL, AND THAT GIVES US
PLENARY POWER WHERE THE COMPLIANCE HAS BEEN ATTEMPTED AND THE DECREE IN
ANY PROPER WAY IS BROUGHT TO OUR ATTENTION TO SEE THAT IT FOLLOWS OUR
OPINION."  (FN6)  SECONDLY, THE RECORD IS CONCERNED MAINLY WITH THE
ALLEGED ADVERSE TAX AND MARKET EFFECTS OF THE GOVERNMENT'S PROPOSAL FOR
COMPLETE DIVESTITURE.  BUT THE PRIMARY FOCUS OF INQUIRY, AS WE SHALL
SHOW, IS UPON THE QUESTION OF THE RELIEF REQUIRED EFFECTIVELY TO
ELIMINATE THE TENDENCY OF THE ACQUISITION CONDEMNED BY SEC. 7.  FOR IT
WILL BE REMEMBERED THAT THE VIOLATION WAS NOT ACTUAL MONOPOLY BUT ONLY
A TENDENCY TOWARDS MONOPOLY.  THE REQUIRED RELIEF THEREFORE IS A REMEDY
WHICH REASONABLY ASSURES THE ELIMINATION OF THAT TENDENCY.  DOES
PARTIAL DIVESTITURE IN THE FORM OF THE "PASS THROUGH" OF VOTING POWER,
TOGETHER WITH THE ANCILLARY RELIEF, GIVE AN EFFECTIVE REMEDY OR IS
COMPLETE DIVESTITURE NECESSARY TO ASSURE EFFECTIVE RELIEF?  LITTLE IN
THE RECORD OR IN THE DISTRICT COURT'S OPINION IS CONCERNED WITH THAT
CRUCIAL QUESTION.  THE FINDINGS OF POSSIBLE HARSH CONSEQUENCES RELIED
UPON TO JUSTIFY REJECTION OF COMPLETE DIVESTITURE ARE THUS HARDLY OF
MATERIAL ASSISTANCE IN REACHING JUDGMENT ON THE CENTRAL ISSUE.  IF OUR
EXAMINATION PERSUADES US THAT THE REMEDY DECREED LEAVES THE PUBLIC
INTEREST IN THE ELIMINATION OF THE TENDENCY INADEQUATELY PROTECTED, WE
SHOULD BE DERELICT IN OUR DUTY IF WE DID NOT CORRECT THE ERROR. 
BEFORE WE EXAMINE THE ADEQUACY OF THE RELIEF ALLOWED BY THE DISTRICT
COURT, IT IS APPROPRIATE TO REVIEW SOME GENERAL CONSIDERATIONS
CONCERNING THAT MOST DRASTIC, BUT MOST EFFECTIVE, OF ANTITRUST REMEDIES
- DIVESTITURE.  THE KEY TO THE WHOLE QUESTION OF AN ANTITRUST REMEDY IS
OF COURSE THE DISCOVERY OF MEASURES EFFECTIVE TO RESTORE COMPETITION. 
COURTS ARE NOT AUTHORIZED IN CIVIL PROCEEDINGS TO PUNISH ANTITRUST
VIOLATORS, AND RELIEF MUST NOT BE PUNITIVE.  BUT COURTS ARE AUTHORIZED,
INDEED REQUIRED, TO DECREE RELIEF EFFECTIVE TO REDRESS THE VIOLATIONS,
WHATEVER THE ADVERSE EFFECT OF SUCH A DECREE ON PRIVATE INTERESTS. 
DIVESTITURE IS ITSELF AN EQUITABLE REMEDY DESIGNED TO PROTECT THE
PUBLIC INTEREST.  IN UNITED STATES V. CRESCENT AMUSEMENT CO., SUPRA,
WHERE WE SUSTAINED DIVESTITURE PROVISIONS AGAINST AN ATTACK SIMILAR TO
THAT SUCCESSFULLY MADE BELOW, WE SAID, AT P. 189:  "IT IS SAID THAT
THESE PROVISIONS ARE INEQUITABLE AND HARSH INCOME TAX WISE, THAT THEY
EXCEED ANY REASONABLE REQUIREMENT FOR THE PREVENTION OF FUTURE
VIOLATIONS, AND THAT THEY ARE THEREFORE PUNITIVE  ..  .   THOSE WHO
VIOLATE THE ACT MAY NOT REAP THE BENEFITS OF THEIR VIOLATIONS AND AVOID
AN UNDOING OF THEIR UNLAWFUL PROJECT ON THE PLEA OF HARDSHIP OR
INCONVENIENCE."  (FN7) 

IF THE COURT CONCLUDES THAT OTHER MEASURES WILL NOT BE EFFECTIVE TO
REDRESS A VIOLATION, AND THAT COMPLETE DIVESTITURE IS A NECESSARY
ELEMENT OF EFFECTIVE RELIEF, THE GOVERNMENT CANNOT BE DENIED THE LATTER
REMEDY BECAUSE ECONOMIC HARDSHIP, HOWEVER SEVERE, MAY RESULT.  ECONOMIC
HARDSHIP CAN INFLUENCE CHOICE ONLY AS AMONG TWO OR MORE EFFECTIVE
REMEDIES.  IF THE REMEDY CHOSEN IS NOT EFFECTIVE, IT WILL NOT BE SAVED
BECAUSE AN EFFECTIVE REMEDY WOULD ENTAIL HARSH CONSEQUENCES.  THIS
PROPOSITION IS NOT NOVEL; IT IS DEEPLY ROOTED IN ANTITRUST LAW AND HAS
NEVER BEEN SUCCESSFULLY CHALLENGED.  (FN8)  THE CRITERIA WERE ANNOUNCED
IN ONE OF THE EARLIEST CASES.  IN UNITED STATES V. AMERICAN TOBACCO
CO., 221 U.S. 106, 185 (1911), WE SAID: 

"IN CONSIDERING THE SUBJECT  ..  THHREE DOMINANT INFLUENCES MUST
GUIDE OUR ACTION:  1.  THE DUTY OF GIVING COMPLETE AND EFFICACIOUS
EFFECT TO THE PROHIBITIONS OF THE STATUTE; 2, THE ACCOMPLISHING OF THIS
RESULT WITH AS LITTLE INJURY AS POSSIBLE TO THE INTEREST OF THE GENERAL
PUBLIC; AND, 3, A PROPER REGARD FOR THE VAST INTERESTS OF PRIVATE
PROPERTY WHICH MAY HAVE BECOME VESTED IN MANY PERSONS AS A RESULT OF
THE ACQUISITION EITHER BY WAY OF STOCK OWNERSHIP OR OTHERWISE OF
INTERESTS IN THE STOCK OR SECURITIES OF THE COMBINATION WITHOUT ANY
GUILTY KNOWLEDGE OR INTENT IN ANY WAY TO BECOME ACTORS OR PARTICIPANTS
IN THE WRONGS WHICH WE FIND TO HAVE INSPIRED AND DOMINATED THE
COMBINATION FROM THE BEGINNING." 

THE COURT CONCLUDED IN THAT CASE THAT, DESPITE THE ALLEGED HARDSHIP
WHICH WOULD BE INVOLVED, ONLY DISSOLUTION OF THE COMBINATION WOULD BE
EFFECTIVE, AND THEREFORE ORDERED DISSOLUTION.  PLAINLY, IF THE RELIEF
IS NOT EFFECTIVE, THERE IS NO OCCASION TO CONSIDER THE THIRD
CRITERION. 

THUS, IN THIS CASE, THE ADVERSE TAX AND MARKET CONSEQUENCES WHICH THE
DISTRICT COURT FOUND WOULD BE CONCOMITANTS OF COMPLETE DIVESTITURE
CANNOT SAVE THE REMEDY OF PARTIAL DIVESTITURE THROUGH THE "PASS
THROUGH" OF VOTING RIGHTS IF, THOUGH LESS HARSH, PARTIAL DIVESTITURE IS
NOT AN EFFECTIVE REMEDY.  WE DO NOT THINK THAT THE "PASS THROUGH" IS AN
EFFECTIVE REMEDY AND BELIEVE THAT THE GOVERNMENT IS ENTITLED TO A
DECREE DIRECTING COMPLETE DIVESTITURE. 

IT CANNOT BE GAINSAID THAT COMPLETE DIVESTITURE IS PECULIARLY
APPROPRIATE IN CASES OF STOCK ACQUISITIONS WHICH VIOLATE SEC. 7.  (FN9)
THAT STATUTE IS SPECIFIC AND "NARROWLY DIRECTED," (FN10) STANDARD OIL
CO. V. UNITED STATES, 337 U.S. 293, 312 (1949), AND IT OUTLAWS A
PARTICULAR FORM OF ECONOMIC CONTROL - STOCK ACQUISITIONS WHICH TEND TO
CREATE A MONOPOLY OF ANY LINE OF COMMERCE.  THE VERY WORDS OF SEC. 7
SUGGEST THAT AN UNDOING OF THE ACQUISITION IS A NATURAL REMEDY. 
DIVESTITURE OR DISSOLUTION HAS TRADITIONALLY BEEN THE REMEDY FOR
SHERMAN ACT VIOLATIONS WHOSE HEART IS INTERCORPORATE COMBINATION AND
CONTROL, (FN11) AND IT IS REASONABLE TO THINK IMMEDIATELY OF THE SAME
REMEDY WHEN SEC. 7 OF THE CLAYTON ACT, WHICH PARTICULARIZES THE SHERMAN
ACT STANDARD OF ILLEGALITY, IS INVOLVED.  OF THE VERY FEW LITIGATED
(FN12) SEC. 7 CASES WHICH HAVE BEEN REPORTED, MOST DECREED DIVESTITURE
AS A MATTER OF COURSE.  (FN13)  DIVESTITURE HAS BEEN CALLED THE MOST
IMPORTANT OF ANTITRUST REMEDIES.  (FN14)  IT IS SIMPLE, RELATIVELY EASY
TO ADMINISTER, AND SURE.  IT SHOULD ALWAYS BE IN THE FOREFRONT OF A
COURT'S MIND WHEN A VIOLATION OF SEC. 7 HAS BEEN FOUND. 

THE DIVESTITURE ONLY OF VOTING RIGHTS DOES NOT SEEM TO US TO BE A
REMEDY ADEQUATE TO PROMISE ELIMINATION OF THE TENDENCY OF DU PONT'S
ACQUISITION OFFENSIVE TO SEC. 7.  UNDER THE DECREE, TWO-THIRDS OF DU
PONT'S HOLDINGS OF GENERAL MOTORS STOCK WILL BE VOTED BY DU PONT
SHAREHOLDERS - UPWARDS OF 40 MILLION SHARES.  COMMON SENSE TELLS US
THAT UNDER THIS ARRANGEMENT THERE CAN BE LITTLE ASSURANCE OF THE
DISSOLUTION OF THE INTERCORPORATE COMMUNITY OF INTEREST WHICH WE FOUND
TO VIOLATE THE LAW.  THE DU PONT SHAREHOLDERS WILL IPSO FACTO ALSO BE
GENERAL MOTORS VOTERS.  IT WILL BE IN THEIR INTEREST TO VOTE IN SUCH A
WAY AS TO INDUCE GENERAL MOTORS TO FAVOR DU PONT, THE VERY RESULT WHICH
WE FOUND ILLEGAL ON THE FIRST APPEAL.  IT MAY BE TRUE, AS APPELLEES
INSIST, THAT THESE SHAREHOLDERS WILL NOT EXERCISE AS MUCH INFLUENCE ON
GENERAL MOTORS AS DID DU PONT WHEN IT HELD AND VOTED THE SHARES AS A
BLOCK.  AND IT IS TRUE THAT THERE IS NO SHOWING IN THIS RECORD THAT THE
DU PONT SHAREHOLDERS WILL COMBINE TO VOTE TOGETHER, OR THAT THEIR
INFORMATION ABOUT GENERAL MOTORS' ACTIVITIES WILL BE DETAILED ENOUGH TO
ENABLE THEM TO VOTE THEIR SHARES AS STRATEGICALLY AS DU PONT ITSELF HAS
DONE.  BUT THESE ARGUMENTS MISCONCEIVE THE NATURE OF THIS PROCEEDING. 
THE BURDEN IS NOT ON THE GOVERNMENT TO SHOW DE NOVO THAT A "PASS
THROUGH" OF THE GENERAL MOTORS VOTE, LIKE DU PONT'S OWNERSHIP OF
GENERAL MOTORS STOCK, WOULD VIOLATE SEC. 7.  UNITED STATES V. ALUMINUM
CO. OF AMERICA, 91 F. SUPP. 333, 346 (D.C.S.D.N.Y. 1950).  IT NEED ONLY
APPEAR THAT THE DECREE ENTERED LEAVES A SUBSTANTIAL LIKELIHOOD THAT THE
TENDENCY TOWARDS MONOPOLY OF THE ACQUISITION CONDEMNED BY SEC. 7 HAS
NOT BEEN SATISFACTORILY ELIMINATED.  WE ARE NOT REQUIRED TO ASSUME,
CONTRARY TO ALL HUMAN EXPERIENCE, THAT DU PONT'S SHAREHOLDERS WILL NOT
VOTE IN THEIR OWN SELF-INTEREST.  MOREOVER, THE GENERAL MOTORS
MANAGEMENT, WHICH OVER THE YEARS HAS BECOME ACCUSTOMED TO DU PONT'S
SPECIAL RELATIONSHIP, (FN15) WOULD KNOW THAT THE RELATIONSHIP CONTINUES
TO A SUBSTANTIAL DEGREE, AND MIGHT WELL ACT ACCORDINGLY.  THE SAME IS
TRUE OF DU PONT'S COMPETITORS.  THEY MIGHT NOT TRY SO VIGOROUSLY TO
BREAK DU PONT'S HOLD ON GENERAL MOTORS' BUSINESS, AS IF COMPLETE
DIVESTITURE WERE ORDERED.  AND FINALLY, THE INFLUENCE OF THE DU PONT
COMPANY ITSELF WOULD NOT BE COMPLETELY DISSIPATED.  FOR UNDER THE
DECREE DU PONT WOULD HAVE THE POWER TO SELL ITS GENERAL MOTORS SHARES;
THE DISTRICT COURT EXPRESSLY HELD THAT "THERE WOULD BE NOTHING IN THE
DECREE TO PREVENT SUCH DISPOSITIONS."  177 F. SUPP., AT 41.  SUCH A
SALE WOULD PRESUMABLY RESTORE THE VOTE SEPARATED FROM THE SOLD STOCK
WHILE DU PONT OWNED IT.  THIS POWER TO TRANSFER THE VOTE COULD
CONCEIVABLY BE USED TO INDUCE GENERAL MOTORS TO FAVOR DU PONT
PRODUCTS.  IN SUM, THE "PASS THROUGH" OF THE VOTE DOES NOT PROMISE
ELIMINATION OF THE VIOLATION OFFENSIVE TO SEC. 7.  WHAT WAS SAID OF THE
SHERMAN ACT IN UNITED STATES V. UNION PACIFIC R. CO., 226 U.S. 470, 477
(1913), APPLIES HERE:  "SO FAR AS IS CONSISTENT WITH THIS PURPOSE A
COURT OF EQUITY DEALING WITH SUCH COMBINATIONS SHOULD CONSERVE THE
PROPERTY INTERESTS INVOLVED, BUT NEVER IN SUCH WISE AS TO SACRIFICE THE
OBJECT AND PURPOSE OF THE STATUTE.  THE DECREE OF THE COURTS MUST BE
FAITHFULLY EXECUTED AND NO FORM OF DISSOLUTION BE PERMITTED THAT IN
SUBSTANCE OR EFFECT AMOUNTS TO RESTORING THE COMBINATION WHICH IT WAS
THE PURPOSE OF THE DECREE TO TERMINATE." 

DU PONT REPLIES, INTER ALIA, THAT IT WOULD BE WILLING FOR ALL OF ITS
GENERAL MOTORS STOCK TO BE DISENFRANCHISED, IF THAT WOULD SATISFY THE
REQUIREMENT FOR EFFECTIVE RELIEF.  THIS SUGGESTION, NOT PRESENTED TO
THE DISTRICT COURT, IS DISTINCTLY AN AFTERTHOUGHT.  IF THE SUGGESTION
IS DISENFRANCHISEMENT ONLY WHILE DU PONT RETAINS THE STOCK, IT WOULD
NOT AVOID THE HAZARDS INHERENT IN DU PONT'S POWER TO TRANSFER THE
VOTE.  IF THE SUGGESTION IS PERMANENT LOSS OF THE VOTE, IT WOULD CREATE
A LARGE AND PERMANENT SEPARATION OF CORPORATE OWNERSHIP FROM CONTROL,
WHICH WOULD NOT ONLY RUN DIRECTLY COUNTER TO ACCEPTED PRINCIPLES OF
CORPORATE DEMOCRACY, BUT ALSO REDUCE SUBSTANTIALLY THE NUMBER OF VOTING
GENERAL MOTORS SHARES, THEREBY MAKING IT EASIER FOR THE OWNER OF A
BLOCK OF SHARES FAR BELOW AN ABSOLUTE MAJORITY TO OBTAIN WORKING
CONTROL, PERHAPS CREATING NEW ANTITRUST PROBLEMS FOR BOTH GENERAL
MOTORS AND THE DEPARTMENT OF JUSTICE IN THE FUTURE.  AND FINALLY, WE
SHOULD BE RELUCTANT TO EFFECT SUCH A DRASTIC CHANGE IN GENERAL MOTORS'
CAPITAL STRUCTURE, ESTABLISHED UNDER STATE CORPORATION LAW. 

APPELLEES ARGUE FURTHER THAT THE INJUNCTIVE PROVISIONS OF THE DECREE
SUPPLEMENTARY TO THE "PASS THROUGH" OF VOTING RIGHTS ADEQUATELY REMOVE
ANY OBJECTIONS TO THE EFFECTIVENESS OF THE "PASS THROUGH."  DU PONT IS
ENJOINED, FOR EXAMPLE, FROM IN ANY WAY INFLUENCING THE CHOICE OF
GENERAL MOTORS' OFFICERS AND DIRECTORS, AND FROM ENTERING INTO ANY
PREFERENTIAL TRADE RELATIONS WITH GENERAL MOTORS.  AND, UNDER PARA. IX
OF THE DECREE, THE GOVERNMENT MAY REAPPLY IN THE FUTURE SHOULD THIS
INJUNCTIVE RELIEF PROVE INADEQUATE.  PRESUMABLY THIS PROVISION COULD BE
USED TO PREVENT THE EXERCISE OF THE POWER TO TRANSFER THE VOTE.  BUT
THE PUBLIC INTEREST SHOULD NOT IN THIS CASE BE REQUIRED TO DEPEND UPON
THE OFTEN CUMBERSOME AND TIME-CONSUMING INJUNCTIVE REMEDY.  SHOULD A
VIOLATION OF ONE OF THE PROHIBITIONS BE THOUGHT TO OCCUR, THE
GOVERNMENT WOULD HAVE THE BURDEN OF INITIATING CONTEMPT PROCEEDINGS AND
OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT A VIOLATION HAD
INDEED BEEN COMMITTED.  (FN16)  SUCH A REMEDY WOULD, JUDGING FROM THE
HISTORY OF THIS LITIGATION, TAKE YEARS TO OBTAIN.  MOREOVER, AN
INJUNCTION CAN HARDLY BE DETAILED ENOUGH TO COVER IN ADVANCE ALL THE
MANY FASHIONS IN WHICH IMPROPER INFLUENCE MIGHT MANIFEST ITSELF.  AND
THE POLICING OF AN INJUNCTION WOULD PROBABLY INVOLVE THE COURTS AND THE
GOVERNMENT IN REGULATION OF PRIVATE AFFAIRS MORE DEEPLY THAN THE
ADMINISTRATION OF A SIMPLE ORDER OF DIVESTITURE.  (FN17)  WE THINK THE
PUBLIC IS ENTITLED TO THE SURER, CLEANER REMEDY OF DIVESTITURE.  THE
SAME RESULT WOULD FOLLOW EVEN IF WE WERE IN DOUBT.  FOR IT IS WELL
SETTLED THAT ONCE THE GOVERNMENT HAS SUCCESSFULLY BORNE THE
CONSIDERABLE BURDEN OF ESTABLISHING A VIOLATION OF LAW, ALL DOUBTS AS
TO THE REMEDY ARE TO BE RESOLVED IN ITS FAVOR.  (FN18) 

WE THEREFORE DIRECT COMPLETE DIVESTITURE.  SINCE THE DISTRICT COURT'S
DECREE WAS FRAMED AROUND THE PROVISION DIRECTING ONLY PARTIAL
DIVESTITURE, AND SINCE GENERAL MOTORS, CHRISTIANA, AND DELAWARE
ACQUIESCED IN ITS PROVISIONS ONLY ON THAT BASIS, WE SHALL NOT PASS UPON
THE PROVISIONS FOR ANCILLARY RELIEF BUT SHALL VACATE THE DECREE IN ITS
ENTIRETY EXCEPT AS TO THE PROVISIONS OF PARA. VI ENJOINING DU PONT
ITSELF FROM EXERCISING VOTING RIGHTS IN RESPECT OF ITS GENERAL MOTORS
STOCK.  IN THIS WAY THE DISTRICT COURT WILL BE FREE TO FASHION A NEW
DECREE CONSISTENT WITH THIS OPINION AT A NEW HEARING AT WHICH ALL
PARTIES MAY BE HEARD.  GENERAL MOTORS, CHRISTIANA, AND DELAWARE WILL
THUS BE ABLE TO RENEW, FOR THE DISTRICT COURT'S DECISION IN THE FIRST
INSTANCE, ANY OBJECTIONS THEY MAY HAVE TO THE POWER OF THE COURT TO
GRANT RELIEF AGAINST THEM. 

WE BELIEVE, HOWEVER, THAT THIS ALREADY PROTRACTED LITIGATION SHOULD
BE CONCLUDED AS SOON AS POSSIBLE.  TO THAT END WE DIRECT THE DISTRICT
COURT ON RECEIPT OF OUR JUDGMENT TO ENTER AN ORDER REQUIRING DU PONT TO
FILE WITHIN 60 DAYS A PROPOSED JUDGMENT PROVIDING FOR COMPLETE
DIVESTITURE OF ITS GENERAL MOTORS STOCK, TO COMMENCE WITHIN 90 DAYS,
AND TO BE COMPLETED WITHIN NOT TO EXCEED 10 YEARS, OF THE EFFECTIVE
DATE OF THE DISTRICT COURT'S JUDGMENT, AND REQUIRING THE GOVERNMENT TO
FILE, WITHIN 30 DAYS AFTER SERVICE UPON IT OF DU PONT'S PROPOSED
JUDGMENT, EITHER PROPOSED SPECIFIC AMENDMENTS TO SUCH DU PONT JUDGMENT
OR A PROPOSED ALTERNATE JUDGMENT OF DIVESTITURE.  THE DISTRICT COURT
SHALL GIVE PRECEDENCE TO THIS CAUSE ON ITS CALENDAR. 

THE JUDGMENT OF THE DISTRICT COURT, EXCEPT TO THE EXTENT PARA. VI IS
AFFIRMED, IS VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SINCE A HOLDING THAT THE CLAYTON ACT HAD BEEN VIOLATED SUFFICED
TO DISPOSE OF THE CASE, WE DID NOT DECIDE WHETHER DU PONT HAD ALSO
VIOLATED THE SHERMAN ACT.  SEE 353 U.S., AT 588, NOTE.  5. 

FN2  IN THIS CASE, HOWEVER, A MAJORITY OF THE COURT SUBSTANTIALLY
MODIFIED THE DISTRICT COURT'S DECREE, IN SPITE OF EXPRESSIONS OF
DEFERENCE WRITTEN INTO THE PRINCIPAL OPINION. 

FN3  IN CRESCENT AMUSEMENT THE COURT RELIED IN PART ON THE FACT THAT
THE DISTRICT JUDGE HAD INITIALLY FOUND THE VIOLATION OF LAW.  THIS
CIRCUMSTANCE WAS SAID TO ENHANCE THE DEFERENCE OWED TO THE DISTRICT
JUDGE'S DETERMINATION OF THE MEASURES APPROPRIATE TO ELIMINATE THE
VIOLATION, 323 U.S., AT 185.  THIS FACTOR IS NOT PRESENT IN THE CASE
BEFORE US. 

FN4  32 STAT. 823, AS AMENDED, 15 U.S.C. SEC. 29.  THE PURPOSE OF
THIS STATUTE WAS TO EXPEDITE DETERMINATION OF ANTITRUST CASES BY
ALLOWING THE ATTORNEY GENERAL TO OBTAIN A SPECIAL CIRCUIT (NOW
DISTRICT) COURT OF SEVERAL JUDGES BY FILING A CERTIFICATE OF PUBLIC
IMPORTANCE UNDER SEC. 1 OF THE ACT, 32 STAT. 823, AS AMENDED, 15 U.S.C.
SEC. 28 (NO SUCH CERTIFICATE WAS FILED IN THIS CASE), AND BY PROVIDING
FOR DIRECT APPEAL TO THE SUPREME COURT FROM THE DECREE OF THE TRIAL
COURT, WHETHER COMPOSED OF ONE OR SEVERAL JUDGES, SUCH APPEAL TO BE
WITHIN THIS COURT'S OBLIGATORY JURISDICTION.  CONGRESS WAS MOVED BY THE
"FAR-REACHING IMPORTANCE OF THE CASES ARISING UNDER THE ANTITRUST LAWS
..  .""  36 CONG. REC. 1679 (REMARKS OF SENATOR FAIRBANKS, FEB. 4,
1903).  SEE ALSO H.R. REP. NO. 3020, 57TH CONG., 2D SESS. 2 (1903). 
FN5  IN ONE CASE THIS ELIMINATION OF THE NORMAL REVIEW BY THE COURT OF
APPEALS ALMOST PREVENTED THERE BEING ANY REVIEW OF THE DISTRICT COURT
AT ALL.  SEE UNITED STATES V. ALUMINUM CO. OF AMERICA, 320 U.S. 708
(1943) (NOTING THE ABSENCE OF A QUORUM IN THIS COURT TO HEAR AN
EXPEDITING ACT APPEAL FROM A DISTRICT COURT).  BUT CONGRESS ACTED TO
KEEP SUCH AN IMPORTANT MATTER FROM GOING UNREVIEWED, SEE H.R. REP. NO.
1317, 78TH CONG., 2D SESS. (1944), AND ENACTED A SPECIAL STATUTE, 58
STAT. 272, 15 U.S.C. SEC. 29, PURSUANT TO WHICH THIS COURT IMMEDIATELY
CERTIFIED THE CASE TO A CIRCUIT COURT OF APPEALS, 322 U.S. 716 (1944),
WHICH PROCEEDED TO DECIDE THE APPEAL.  148 F.2D 416 (C.A.2D CIR.
1945).  SEE ALSO UNITED STATES V. UNITED STATES DISTRICT COURT, 334
U.S. 258 (1948). 

FN6  GOVERNMENT COUNSEL AT THE TRIAL ADVISED THE DISTRICT COURT THAT
HE HAD NO AUTHORITY TO SUGGEST MODES OF DIVESTITURE DIFFERENT FROM THE
PLAN PRESENTED BY THE GOVERNMENT TO THE DISTRICT COURT.  APPELLEES
SUGGEST THAT THE GOVERNMENT IS THUS ESTOPPED FROM URGING OTHER MODES OF
DIVESTITURE ON THIS APPEAL.  BUT PLAINLY, UNDER THE RULE OF CONTINENTAL
INSURANCE, NO STIPULATION BY THE GOVERNMENT COULD CIRCUMSCRIBE THIS
COURT'S POWER TO SEE THAT ITS MANDATE IS CARRIED OUT. 

FN7  BILLS WERE INTRODUCED IN THE EIGHTY-SIXTH CONGRESS TO AMELIORATE
THE INCOME-TAX CONSEQUENCES OF GAIN ON DISPOSITION OF STOCK PURSUANT TO
ORDERS ENFORCING THE ANTITRUST LAWS.  SEE HEARINGS ON S. 200 BEFORE THE
SENATE COMMITTEE ON FINANCE, 86TH CONG., 1ST SESS. (1959); HEARINGS ON
H.R. 8126 BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, 86TH CONG., 1ST
SESS. (1959); H.R. REP. NO. 1128, 86TH CONG., 1ST SESS. (1959). 

FN8  SEE, E.G., UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S.
173, 189 (1944); UNITED STATES V. CORN PRODUCTS REFINING CO., 234 F.
964, 1018 (D.C.S.D.N.Y. 1916), APPEAL DISMISSED ON MOTION OF APPELLANT,
249 U.S. 621 (1919); UNITED STATES V. E.I. DU PONT DE NEMOURS & CO.,
188 F. 127, 153 (C.C.D. DEL. 1911), MODIFIED, 273 F. 869 (D.C.D. DEL.
1921); IN RE CROWN ZELLERBACH CORP., CCH TRADE REG. REP. 1957-1958
PARA. 26,923, AT P. 36,462 (F.T.C. 1958). 

FN9  WE REJECT THE GOVERNMENT'S ARGUMENT THAT THE FEDERAL TRADE
COMMISSION AND OTHER ADMINISTRATIVE AGENCIES CHARGED WITH THE DUTY OF
ENFORCING THE STATUTE ARE REQUIRED BY SEC. 11 OF THE CLAYTON ACT TO
ORDER DIVESTITURE WHENEVER THEY FIND A VIOLATION OF SEC. 7, AND THAT
THEREFORE COURTS ACTING UNDER SEC. 15 MUST GIVE THE SAME RELIEF.  EVEN
IF THE ADMINISTRATIVE AGENCIES WERE SO LIMITED, A QUESTION WHICH WE DO
NOT DECIDE, CONGRESS WOULD NOT BE DEEMED TO HAVE RESTRICTED THE BROAD
REMEDIAL POWERS OF COURTS OF EQUITY WITHOUT EXPLICIT LANGUAGE DOING SO
IN TERMS, OR SOME OTHER STRONG INDICATION OF INTENT.  HECHT CO. V.
BOWLES, 321 U.S. 321, 329 (1944). 

FN10  THE WORDS WERE ACTUALLY USED OF SEC. 3 OF THE CLAYTON ACT, BUT
THEY ARE EQUALLY APPLICABLE TO SEC. 7. 

FN11  SEE NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197
(1904); STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1 (1911); UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106 (1911); UNITED STATES V.
UNION PACIFIC R. CO., 226 U.S. 61 (1912), MODIFIED, 226 U.S. 470
(1913); UNITED STATES V. READING CO., 226 U.S. 324 (1912), MODIFIED,
228 U.S. 158 (1913); UNITED STATES V. READING CO., 253 U.S. 26 (1920),
MODIFIED AFTER REMAND, CONTINENTAL INS. CO. V. UNITED STATES, 259 U.S.
156 (1922); UNITED STATES V. LEHIGH VALLEY R. CO., 254 U.S. 255 (1920);
UNITED STATES V. SOUTHERN PACIFIC CO., 259 U.S. 214 (1922); UNITED
STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173 (1944); HARTFORD-EMPIRE
CO. V. UNITED STATES, 323 U.S. 386 (1945), CLARIFIED, 324 U.S. 570
(1945); UNITED STATES V. NATIONAL LEAD CO., 332 U.S. 319 (1947); SCHINE
CHAIN THEATRES, INC., V. UNITED STATES, 334 U.S. 110 (1948); UNITED
STATES V. PARAMOUNT PICTURES, INC., 334 U.S. 131 (1948); BESSER MFG.
CO. V. UNITED STATES, 343 U.S. 444 (1952); INTERNATIONAL BOXING CLUB V.
UNITED STATES, 358 U.S. 242 (1959); UNITED STATES V. E.I. DU PONT DE
NEMOURS & CO., 188 F. 127 (C.C.D. DEL. 1911), MODIFIED, 273 F. 869
(D.C.D. DEL. 1921); UNITED STATES V. LAKE SHORE & M.S.R. CO., 203 F.
295 (D.C.S.D. OHIO 1912), MODIFIED 281 F. 1007 (D.C.S.D. OHIO 1916);
UNITED STATES V. INTERNATIONAL HARVESTER CO., 214 F. 987 (D.C.D. MINN.
1914), MODIFICATION DENIED, 10 F.2D 827 (D.C.D. MINN. 1926), AFF'D, 274
U.S. 693 (1927); UNITED STATES V. EASTMAN KODAK CO., 226 F. 62
(D.C.W.D.N.Y. 1915), DECREE ENTERED, 230 F. 522 (D.C.W.D.N.Y. 1916),
APPEAL DISMISSED ON MOTION OF APPELLANT, 255 U.S. 578 (1921); UNITED
STATES V. CORN PRODUCTS REFINING CO., 234 F. 964 (D.C.S.D.N.Y. 1916),
APPEAL DISMISSED ON MOTION OF APPELLANT, 249 U.S. 621 (1919); UNITED
STATES V. MINNESOTA MINING & MFG. CO., 92 F. SUPP. 947 (D.C.D. MASS.
1950), MODIFIED, 96 F. SUPP. 356 (D.C.D. MASS. 1951); UNITED STATES V.
IMPERIAL CHEMICAL INDUS., LTD., 100 F. SUPP. 504 (D.C.S.D.N.Y. 1951),
DECREE ENTERED, 105 F. SUPP. 215 (D.C.S.D.N.Y. 1952). 

IN MANY OF THESE CASES THE COURTS REFERRED TO "DISSOLUTION" OR
"DIVORCEMENT" INSTEAD OF "DIVESTITURE."  THESE TERMS HAVE TRADITIONALLY
BEEN TREATED AS TO A LARGE DEGREE INTERCHANGEABLE, AND WE SO REGARD
THEM.  SEE HALE AND HALE, MARKET POWER:  SIZE AND SHAPE UNDER THE
SHERMAN ACT 370 (1958); ADAMS, DISSOLUTION, DIVORCEMENT, DIVESTITURE:
THE PYRRHIC VICTORIES OF ANTITRUST, 27 IND. L.J. 1, NOTE 1 (1951). 

FN12  APPELLEES RELY ON SEVERAL CLAYTON ACT CONSENT DECREES GRANTING
RELIEF SHORT OF DIVESTITURE, BUT THE CIRCUMSTANCES SURROUNDING SUCH
NEGOTIATED AGREEMENTS ARE SO DIFFERENT THAT THEY CANNOT BE PERSUASIVELY
CITED IN A LITIGATION CONTEXT. 

FN13  SEE, E.G., MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED
STATES, 362 U.S. 458 (1960); ALUMINUM CO. OF AMERICAN V. FEDERAL TRADE
COMM'N, 284 F. 401 (C.A. 3D CIR. 1922), CERT. DENIED, 261 U.S. 616
(1923), MODIFICATION DENIED, 299 F. 361 (C.A. 3D CIR. 1924).  UNITED
STATES V. NEW ENGLAND FISH EXCHANGE, 258 F. 732 (D.C.D. MASS. 1919),
MODIFICATION DENIED, 292 F. 511 (D.C.D. MASS. 1923), ON WHICH APPELLEES
PLACE GREAT RELIANCE, IS NOT A CLEAR EXCEPTION.  IT IS TRUE THAT
DEFENDANTS THERE WERE ALLOWED TO RETAIN THE ASSETS (NOT THE STOCK) OF
ONE OF THE EIGHT CORPORATIONS WHOSE STOCK THEY HAD ACQUIRED IN
VIOLATION OF SEC. 7.  BUT PROBABLY ACQUISITION OF ONLY ONE OF THOSE
CORPORATIONS' STOCK WOULD NOT HAVE BEEN ILLEGAL.  THE ONLY CLEAR
EXCEPTION IN THE COURTS IS AMERICAN CRYSTAL SUGAR CO. V. CUBAN-AMERICAN
SUGAR CO., 152 F. SUPP. 387 (D.C.S.D.N.Y. 1957), AFF'D ON THE
DEFENDANT'S APPEAL, 259 F.2D 524 (C.A.2D CIR. 1958).  BUT THE AUTHORITY
OF THAT CASE IS SOMEWHAT DIMINISHED BY THE FACT THAT IT WAS BROUGHT NOT
BY THE GOVERNMENT BUT BY A PRIVATE PLAINTIFF, AND BY THE ABSENCE OF ANY
DISCUSSION IN THE OPINION OF THE ISSUE OF DIVESTITURE VEL NON.  SEE 152
F. SUPP., AT 400-401 AND NOTE 16. 

FN14  SEE HALE AND HALE, OP CIT., SUPRA, NOTE 11, AT 370. 

FN15  FOR THE SIGNIFICANCE OF SUCH LONG HABIT, SEE NORTH AMERICAN CO.
V. SECURITIES & EXCHANGE COMM'N, 327 U.S. 686, 693 (1946); UNITED
STATES V. IMPERIAL CHEMICAL INDUS., LTD., 105 F. SUPP. 215, 236-237
(D.C.S.D.N.Y. 1952); DOUGLAS, DEMOCRACY AND FINANCE 33 (1940). 

FN16  UNITED STATES V. CORN PRODUCTS REFINING CO., 234 F. 964, 1018
(D.C.S.D.N.Y. 1916), APPEAL DISMISSED ON MOTION OF APPELLANT, 249 U.S.
621 (1919); 12 ALA. L. REV. 214, 220-221 (1959); NOTE, 56 COL. L. REV.
420, 430 (1956)("CONTEMPT CITATIONS ARE A POOR METHOD OF RESTORING
COMPETITION  .. ");; BERGE, SOME PROBLEMS IN THE ENFORCEMENT OF THE
ANTITRUST LAWS, 38 MICH. L. REV. 462, 469 (1940). 

FN17  SEE HALE AND HALE, OP. CIT., SUPRA, NOTE 11, AT 379. 

FN18  UNITED STATES V. BAUSCH & LOMB OPTICAL CO., 321 U.S. 707, 726
(1944); LOCAL 167, INTERNATIONAL BROTHERHOOD OF TEAMSTERS V. UNITED
STATES, 291 U.S. 293, 299 (1934).  CF.  WILLIAM R. WARNER & CO. V. ELI
LILLY & CO., 265 U.S. 526, 532 (1924)(SAME PRINCIPLE APPLIED TO PRIVATE
LITIGATION). 

MR. JUSTICE CLARK AND MR. JUSTICE HARLAN TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE WHITTAKER AND MR. JUSTICE
STEWART JOIN, DISSENTING. 

IN UNITED STATES V. E.I. DU PONT DE NEMOURS & CO., 353 U.S. 586, THE
COURT HELD THAT THE ACQUISITION AND CONTINUED OWNERSHIP BY E.I. DU PONT
DE NEMOURS & CO. OF TWENTY-THREE PERCENT OF THE STOCK OF THE GENERAL
MOTORS CORPORATION CONSTITUTED A VIOLATION OF SEC. 7 OF THE CLAYTON
ACT.  (FN1)  THE QUESTION NOW BEFORE US IS THE ADEQUACY OF THE TERMS OF
THE ENFORCEMENT OF THAT JUDGMENT BY THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, 177 F. SUPP. 1.  IN ORDER TO
DETERMINE WHETHER THE DISTRICT JUDGE SATISFACTORILY DISCHARGED THE
DUTIES ASSIGNED HIM, IT IS NECESSARY TO BE CLEAR ABOUT THESE UNDERLYING
ELEMENTS OF THE QUESTION FOR DECISION:  (1) WHAT DID THIS COURT HOLD
AND SAY IN FINDING THAT DU PONT HAD VIOLATED SEC. 7?  (2) WHAT
CONSIDERATIONS GUIDED THE DISTRICT JUDGE IN FASHIONING HIS DECREE?  (3)
WHAT PRINCIPLES HAS THIS COURT LAID DOWN FOR THE FORMULATION OF DECREES
BY DISTRICT COURTS, PARTICULARLY UNDER THE ANTITRUST LAWS, AND FOR
REVIEW OF THOSE DECREES HERE? 

                                           I. 

AS THE COURT DESCRIBED IT, THE "PRIMARY ISSUE" IN THE GOVERNMENT'S
SUIT AGAINST DU PONT, GENERAL MOTORS, AND RELATED PARTIES WAS "WHETHER
DU PONT'S COMMANDING POSITION AS GENERAL MOTORS' SUPPLIER OF AUTOMOTIVE
FINISHES AND FABRICS WAS ACHIEVED ON COMPETITIVE MERIT ALONE, OF
BECAUSE ITS ACQUISITION OF THE GENERAL MOTORS' STOCK, AND THE
CONSEQUENT CLOSE INTERCOMPANY RELATIONSHIP, LED TO THE INSULATION OF
MOST OF THE GENERAL MOTORS' MARKET FROM FREE COMPETITION, WITH THE
RESULTANT LIKELIHOOD, AT THE TIME OF SUIT, OF THE CREATION OF A
MONOPOLY OF A LINE OF COMMERCE."  353 U.S., AT 588-589.  THE QUESTION
WAS ASKED IN THE CONTEXT OF THESE FACTS. 

THE TRANSACTION OUT OF WHICH THE CASE AROSE WAS THE ACQUISITION BY DU
PONT, DURING THE PERIOD 1917-1919, OF A TWENTY-THREE PERCENT STOCK
INTEREST IN GENERAL MOTORS.  THAT "COLOSSUS OF THE GIANT AUTOMOBILE
INDUSTRY" ABSORBED "UPWARDS OF TWO-FIFTHS OF THE TOTAL SALES OF
AUTOMOTIVE VEHICLES IN THE NATION" OVER THE PERIOD FROM 1938 TO 1955. 
IN 1955 IT RANKED FIRST IN SALES AND SECOND IN ASSETS AMONG ALL UNITED
STATES INDUSTRIAL CORPORATIONS.  PURCHASES OF AUTOMOTIVE FABRICS AND
FINISHES BY GENERAL MOTORS FROM DU PONT RAN INTO MILLIONS OF DOLLARS
ANNUALLY IN THE YEARS IMMEDIATELY PRECEDING THE INSTITUTION OF THE
GOVERNMENT'S SUIT IN 1949.  DU PONT SUPPLIED SIXTY-SEVEN PERCENT OF
GENERAL MOTORS' REQUIREMENTS FOR FINISHES IN 1946 AND SIXTY-EIGHT
PERCENT IN 1947.  THE FIGURES FOR FABRICS SUPPLIED TO GENERAL MOTORS BY
DU PONT IN THOSE YEARS ARE FIFTY-TWO AND THREE-TENTHS PERCENT AND
THIRTY-EIGHT AND FIVE-TENTHS PERCENT RESPECTIVELY. 

DU PONT'S "COMMANDING POSITION AS A GENERAL MOTORS SUPPLIER" WAS NOT
ACHIEVED UNTIL AFTER ITS ACQUISITION OF A SUBSTANTIAL FRACTION OF
GENERAL MOTORS' STOCK.  AT THE TIME OF THIS PURCHASE, DU PONT WAS
ACTIVELY SEEKING MARKETS FOR ITS NITROCELLULOSE, ARTIFICIAL LEATHER,
CELLULOID, RUBBER-COATED GOODS, AND PAINTS AND VARNISHES USED BY
AUTOMOBILE MANUFACTURERS.  LEADING DU PONT EXECUTIVES IN 1917 AND 1918
INDICATED THAT THE ACQUISITION OF GENERAL MOTORS STOCK WAS DUE IN PART
TO A BELIEF THAT IT WOULD SECURE FOR DU PONT AN IMPORTANT MARKET FOR
ITS AUTOMOTIVE PRODUCTS. 

"THIS BACKGROUND OF THE ACQUISITION, PARTICULARLY THE PLAIN
IMPLICATIONS OF THE CONTEMPORANEOUS DOCUMENTS, DESTROYS ANY BASIS FOR A
CONCLUSION THAT THE PURCHASE WAS MADE 'SOLELY FOR INVESTMENT.' 
MOREOVER, IMMEDIATELY AFTER THE ACQUISITION, DU PONT'S INFLUENCE
GROWING OUT OF IT WAS BROUGHT TO BEAR WITHIN GENERAL MOTORS TO ACHIEVE
PRIMACY FOR DU PONT AS GENERAL MOTORS' SUPPLIER OF AUTOMOTIVE FABRICS
AND FINISHES."  353 U.S., AT 602. 

A FORMER DU PONT OFFICIAL BECAME A GENERAL MOTORS VICE PRESIDENT AND
SET ABOUT MAXIMIZING DU PONT'S SHARE OF THE GENERAL MOTORS MARKET. 
LINES OF COMMUNICATIONS WERE ESTABLISHED BETWEEN THE TWO COMPANIES AND
SEVERAL DU PONT PRODUCTS WERE ACTIVELY PROMOTED.  WITHIN A FEW YEARS
VARIOUS DU PONT MANUFACTURED ITEMS WERE FILLING THE ENTIRE REQUIREMENTS
OF FROM FOUR TO SEVEN OF GENERAL MOTORS' EIGHT OPERATING DIVISIONS. 
THE FISHER BODY DIVISION, LONG CONTROLLED BY THE FISHER BROTHERS UNDER
A VOTING TRUST EVEN THOUGH GENERAL MOTORS OWNED A MAJORITY OF ITS
STOCK, FOLLOWED AN INDEPENDENT COURSE FOR MANY YEARS, BUT BY 1947 AND
1948 "RESISTANCE HAD COLLAPSED" AND ITS PURCHASES FROM DU PONT
"COMPARED FAVORABLY" WITH PURCHASES BY OTHER GENERAL MOTORS DIVISIONS. 
COMPETITORS CAME TO RECEIVE HIGHER PERCENTAGES OF GENERAL MOTORS
BUSINESS IN LATER YEARS, BUT IT IS "LIKELY" THAT THIS TREND STEMMED "AT
LEAST IN PART" FROM THE NEEDS OF GENERAL MOTORS OUTSTRIPPING DU PONT'S
CAPACITY. 

"THE FACT THAT STICKS OUT IN THIS VOLUMINOUS RECORD IS THAT THE BULK
OF DU PONT'S PRODUCTION HAS ALWAYS SUPPLIED THE LARGEST PART OF THE
REQUIREMENTS OF THE ONE CUSTOMER IN THE AUTOMOBILE INDUSTRY CONNECTED
TO DU PONT BY A STOCK INTEREST.  THE INFERENCE IS OVERWHELMING THAT DU
PONT'S COMMANDING POSITION WAS PROMOTED BY ITS STOCK INTEREST AND WAS
NOT GAINED SOLELY ON COMPETITIVE MERIT."  353 U.S., AT 605. 

THIS COURT AGREED WITH THE TRIAL COURT "THAT CONSIDERATIONS OF PRICE,
QUALITY AND SERVICE WERE NOT OVERLOOKED BY EITHER DU PONT OR GENERAL
MOTORS."  353 U.S., AT 606.  HOWEVER, IT DETERMINED THAT NEITHER THIS
FACTOR, NOT "THE FACT THAT ALL CONCERNED IN HIGH EXECUTIVE POSTS IN
BOTH COMPANIES ACTED HONORABLY AND FAIRLY, EACH IN THE HONEST
CONVICTION THAT HIS ACTIONS WERE IN THE BEST INTERESTS OF HIS OWN
COMPANY AND WITHOUT ANY DESIGN TO OVERREACH ANYONE, INCLUDING DU PONT'S
COMPETITORS," 353 U.S., AT 607, OUTWEIGHED THE GOVERNMENT'S CLAIM FOR
RELIEF.  THIS CLAIM, AS SUBMITTED TO THE DISTRICT COURT AND DISMISSED
BY IT, 126 F. SUPP. 235, ALLEGED VIOLATION NOT ONLY OF SEC. 7 OF THE
CLAYTON ACT, BUT ALSO OF SECS. 1 AND 2 OF THE SHERMAN ACT.  (FN2)  THE
LATTER PROVISIONS PROSCRIBE ANY CONTRACT, COMBINATION, OR CONSPIRACY IN
RESTRAINT OF INTERSTATE OR FOREIGN TRADE, AND MONOPOLIZATION OF, OR
ATTEMPTS, COMBINATIONS, OR CONSPIRACIES TO MONOPOLIZE, SUCH TRADE. 
HOWEVER, THIS COURT PUT TO ONE SIDE WITHOUT CONSIDERATION THE
GOVERNMENT'S APPEAL FROM THE DISMISSAL OF ITS SHERMAN ACT ALLEGATIONS. 
(FN3)  IT RESTED ITS DECISION SOLELY ON SEC. 7, WHICH READS IN
PERTINENT PART: 

"NO CORPORATION ENGAGED IN COMMERCE SHALL ACQUIRE, DIRECTLY OR
INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK OR OTHER SHARE CAPITAL
OF ANOTHER CORPORATION ENGAGED ALSO IN COMMERCE, WHERE THE EFFECT OF
SUCH ACQUISITION MAY BE TO SUBSTANTIALLY LESSEN COMPETITION BETWEEN THE
CORPORATION WHOSE STOCK IS SO ACQUIRED AND THE CORPORATION MAKING THE
ACQUISITION, OR TO RESTRAIN SUCH COMMERCE IN ANY SECTION OR COMMUNITY,
OR TEND TO CREATE A MONOPOLY OF ANY LINE OF COMMERCE. 

*         *         *         *         * 

"THIS SECTION SHALL NOT APPLY TO CORPORATIONS PRUCHASING SUCH STOCK
SOLELY FOR INVESTMENT AND NOT USING THE SAME BY VOTING OR OTHERWISE TO
BRING ABOUT, OR IN ATTEMPTING TO BRING ABOUT, THE SUBSTANTIAL LESSENING
OF COMPETITION  ..  ."" 

THE PURPOSE OF THIS PROVISION WAS THUS EXPLAINED IN THE COURT'S
OPINION: 

"SECTION 7 IS DESIGNED TO ARREST IN ITS INCIPIENCY NOT ONLY THE
SUBSTANTIAL LESSENING OF COMPETITION FROM THE ACQUISITION BY ONE
CORPORATION OF THE WHOLE OR ANY PART OF THE STOCK OF A COMPETING
CORPORATION, BUT ALSO TO ARREST IN THEIR INCIPIENCY RESTRAINTS OR
MONOPOLIES IN A RELEVANT MARKET WHICH, AS A REASONABLE PROBABILITY,
APPEAR AT THE TIME OF SUIT LIKELY TO RESULT FROM THE ACQUISITION BY ONE
CORPORATION OF ALL OR ANY PART OF THE STOCK OF ANY OTHER CORPORATION. 
THE SECTION IS VIOLATED WHETHER OR NOT ACTUAL RESTRAINTS OR MONOPOLIES,
OR THE SUBSTANTIAL LESSENING OF COMPETITION, HAVE OCCURRED OR ARE
INTENDED  ..  .""  353 U.S., AT 589. 

THUS, A FINDING OF CONSPIRACY TO RESTRAIN TRADE OR ATTEMPT TO
MONOPOLIZE WAS EXCLUDED FROM THE COURT'S DECISION.  INDEED, AS ALREADY
NOTED, THE COURT PROCEEDED ON THE ASSUMPTION THAT THE EXECUTIVES
INVOLVED IN THE DEALINGS BETWEEN DU PONT AND GENERAL MOTORS ACTED
"HONORABLY AND FAIRLY" AND EXERCISED THEIR BUSINESS JUDGMENT ONLY TO
SERVE WHAT THEY DEEMED THE BEST INTERESTS OF THEIR OWN COMPANIES. 
THIS, HOWEVER, DID NOT BAR FINDING THAT DU PONT HAD BECOME PRE-EMINENT
AS A SUPPLIER OF AUTOMOTIVE FABRICS AND FINISHES TO GENERAL MOTORS;
THAT THESE PRODUCTS CONSTITUTED A "LINE OF COMMERCE" WITHIN THE MEANING
OF THE CLAYTON ACT; THAT GENERAL MOTORS' SHARE OF THE MARKET FOR THESE
PRODUCTS WAS SUBSTANTIAL; AND THAT COMPETITION FOR THIS SHARE OF THE
MARKET WAS ENDANGERED BY THE FINANCIAL RELATIONSHIP BETWEEN THE TWO
CONCERNS: 

"THE STATUTORY POLICY OF FOSTERING FREE COMPETITION IS OBVIOUSLY
FURTHERED WHEN NO SUPPLIER HAS AN ADVANTAGE OVER HIS COMPETITORS FROM
AN ACQUISITION OF HIS CUSTOMER'S STOCK LIKELY TO HAVE THE EFFECTS
CONDEMNED BY THE STATUTE.  WE REPEAT, THAT THE TEST OF A VIOLATION OF
SEC. 7 IS WHETHER, AT THE TIME OF SUIT, THERE IS A REASONABLE
PROBABILITY THAT THE ACQUISITION IS LIKELY TO RESULT IN THE CONDEMNED
RESTRAINTS.  THE CONCLUSION UPON THIS RECORD IS INESCAPABLE THAT SUCH
LIKELIHOOD WAS PROVED AS TO THIS ACQUISITION  ..  .""  353 U.S., AT
607. 

ON THE BASIS OF THE FINDINGS WHICH LED TO THIS CONCLUSION, THE COURT
REMANDED THE CASE TO THE DISTRICT COURT TO DETERMINE THE APPROPRIATE
RELIEF.  THE SOLE GUIDANCE GIVEN THE COURT FOR DISCHARGING THE TASK
COMMITTED TO IT WAS THIS: 

"THE JUDGMENT MUST THEREFORE BE REVERSED AND THE CAUSE REMANDED TO
THE DISTRICT COURT FOR A DETERMINATION, AFTER FURTHER HEARING, OF THE
EQUITABLE RELIEF NECESSARY AND APPROPRIATE IN THE PUBLIC INTEREST TO
ELIMINATE THE EFFECTS OF THE ACQUISITION OFFENSIVE TO THE STATUTE.  THE
DISTRICT COURTS, IN THE FRAMING OF EQUITABLE DECREES, ARE CLOTHED 'WITH
LARGE DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE.'  INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S.
392, 400-401."  353 U.S., AT 607-608. 

THIS BRINGS US TO THE COURSE OF THE PROCEEDINGS IN THE DISTRICT
COURT. 

      II. 

THIS COURT'S JUDGMENT WAS FILED IN THE DISTRICT COURT ON JULY 18,
1957.  THE FIRST PRETRIAL CONFERENCE - HELD TO APPOINT AMICI CURIAE TO
REPRESENT THE INTERESTS OF THE STOCKHOLDERS OF DU PONT AND GENERAL
MOTORS AND TO CONSIDER THE PROCEDURE TO BE FOLLOWED IN THE SUBSEQUENT
HEARINGS - TOOK PLACE ON SEPTEMBER 25, 2957.  AT THE OUTSET, THE
GOVERNMENT'S SPOKESMAN EXPLAINED THAT COUNSEL FOR THE GOVERNMENT AND
FOR DU PONT HAD ALREADY HELD PRELIMINARY DISCUSSIONS WITH A VIEW TO
ARRIVING AT A RELIEF PLAN THAT BOTH SIDES COULD RECOMMEND TO THE
COURT.  DU PONT, HE SAID, HAD PROPOSED DISENFRANCHISEMENT OF ITS
GENERAL MOTORS STOCK ALONG WITH OTHER RESTRICTIONS ON THE DU PONT
GENERAL MOTORS RELATIONSHIP.  THE GOVERNMENT, DEEMING THESE SUGGESTIONS
INADEQUATE, HAD URGED THAT ANY JUDGMENT INCLUDE DIVESTITURE OF DU
PONT'S SHARES OF GENERAL MOTORS.  COUNSEL FOR THE GOVERNMENT INVITED DU
PONT'S VIEWS ON THIS PROPOSAL BEFORE RECOMMENDING A SPECIFIC PROGRAM,
BUT STATED THAT IF THE COURT DESIRED, OR IF COUNSEL FOR DU PONT THOUGHT
FURTHER DISCUSSION WOULD NOT BE PROFITABLE, THE GOVERNMENT WAS PREPARED
TO SUBMIT A PLAN WITHIN THIRTY DAYS. 

COUNSEL FOR DU PONT INDICATED A PREFERENCE FOR THE SUBMISSION OF
DETAILED PLANS BY BOTH SIDES AT AN EARLY DATE.  NO PREVIOUS ANTITRUST
CASE, HE SAID, HAD INVOLVED INTERESTS OF SUCH MAGNITUDE OR PRESENTED
SUCH COMPLEX PROBLEMS OF RELIEF.  THE SUBMISSION OF DETAILED PLANS
WOULD PLACE THE ISSUES BEFORE THE COURT MORE READILY THAN WOULD
DISCUSSION OF DIVESTITURE OR DISENFRANCHISEMENT IN THE ABSTRACT.  THE
COURT ADOPTED THIS PROCEDURE WITH AN APPROPRIATE TIME SCHEDULE FOR
CARRYING IT OUT. 

THE GOVERNMENT SUBMITTED ITS PROPOSED DECREE ON OCTOBER 25, 1957. 
THE PLAN CALLED FOR DIVESTITURE BY DU PONT OF ITS 63,000,000 SHARES OF
GENERAL MOTORS STOCK BY EQUAL ANNUAL DISTRIBUTIONS TO ITS STOCKHOLDERS,
AS A DIVIDEND, OVER A PERIOD OF TEN YEARS.  CHRISTIANA SECURITIES
COMPANY AND DELAWARE REALTY & INVESTMENT COMPANY, MAJOR STOCKHOLDERS IN
DU PONT, AND THE STOCKHOLDERS OF DELAWARE WERE DEALT WITH SPECIALLY BY
PROVISIONS REQUIRING THE ANNUAL SALE BY A TRUSTEE, AGAIN OVER A TEN
YEAR PERIOD, OF DU PONT'S GENERAL MOTORS STOCK ALLOCABLE TO THEM, AS
WELL AS ANY GENERAL MOTORS STOCK WHICH CHRISTIANA AND DELAWARE OWNED
OUTRIGHT.  IF, IN THE TRUSTEE'S JUDGMENT, "REASONABLE MARKET
CONDITIONS" DID NOT PREVAIL DURING ANY GIVEN YEAR, HE WAS TO BE ALLOWED
TO PETITION THE COURT FOR AN EXTENSION OF TIME WITHIN THE TEN-YEAR
PERIOD.  IN ADDITION, THE RIGHT TO VOTE THE GENERAL MOTORS STOCK HELD
BY DU PONT WAS TO BE VESTED IN DU PONT'S STOCKHOLDERS, OTHER THAN
CHRISTIANA AND DELAWARE AND THE STOCKHOLDERS OF DELAWARE; DU PONT,
CHRISTIANA, AND DELAWARE WERE TO BE ENJOINED FROM ACQUIRING STOCK IN OR
EXERCISING CONTROL OVER GENERAL MOTORS; DU PONT, CHRISTIANA, AND
DELAWARE WERE TO BE PROHIBITED TO HAVE ANY DIRECTOR OR OFFICER IN
COMMON WITH GENERAL MOTORS, AND VICE VERSA; AND GENERAL MOTORS AND DU
PONT WERE TO BE ORDERED TO TERMINATE ANY AGREEMENT THAT PROVIDED FOR
THE PURCHASE BY GENERAL MOTORS OF ANY SPECIFIED PERCENTAGE OF ITS
REQUIREMENTS OF ANY DU PONT MANUFACTURED PRODUCT, OR FOR THE GRANT OF
EXCLUSIVE PATENT RIGHTS, OR FOR A GRANT BY GENERAL MOTORS TO DU PONT OF
A PREFERENTIAL RIGHT TO MAKE OR SELL ANY CHEMICAL DISCOVERY OF GENERAL
MOTORS, OR FOR THE MAINTENANCE OF ANY JOINT COMMERCIAL ENTERPRISE BY
THE TWO COMPANIES. 

ON MOTION OF THE AMICI CURIAE, THE COURT DIRECTED THAT A RULING BE
OBTAINED FROM THE COMMISSIONER OF INTERNAL REVENUE AS TO THE FEDERAL
INCOME TAX CONSEQUENCES OF THE GOVERNMENT'S PLAN.  ON MAY 9, 1958, THE
COMMISSIONER ANNOUNCED HIS RULINGS.  THE ANNUAL DIVIDENDS PAID TO DU
PONT STOCKHOLDERS IN SHARES OF GENERAL MOTORS STOCK WOULD BE TAXABLE AS
ORDINARY INCOME TO THE EXTENT OF DU PONT'S EARNINGS AND PROFITS.  THE
MEASURE, FOR FEDERAL INCOME TAX PURPOSES, OF THE DIVIDEND TO INDIVIDUAL
STOCKHOLDERS WOULD BE THE FAIR MARKET VALUE OF THE SHARES AT THE TIME
OF EACH ANNUAL DISTRIBUTION.  IN THE CASE OF TAXPAYING CORPORATE
STOCKHOLDERS, THE MEASURE WOULD BE THE LESSER OF THE FAIR MARKET VALUE
OF THE SHARES OR DU PONT'S TAX BASIS FOR THEM, WHICH IS APPROXIMATELY
$2.09 PER SHARE.  THE FORCED SALE OF THE GENERAL MOTORS STOCK OWNED BY
OR ALLOCABLE TO CHRISTIANA, DELAWARE, AND THE STOCKHOLDERS OF DELAWARE,
AND DEPOSITED WITH THE TRUSTEE, WOULD RESULT IN A TAX TO THOSE PARTIES
AT THE CAPITAL GAINS RATE. 

DU PONT'S COUNTERPROPOSAL WAS FILED ON MAY 14, 1958.  UNDER ITS PLAN
DU PONT WOULD RETAIN ITS GENERAL MOTORS SHARES BUT BE REQUIRED TO PASS
ON TO ITS STOCKHOLDERS THE RIGHT TO VOTE THOSE SHARES.   CHRISTIANA AND
DELAWARE WOULD, IN TURN, BE REQUIRED TO PASS ON THE VOTING RIGHTS TO
THE GENERAL MOTORS SHARES ALLOCABLE TO THEM TO THEIR OWN STOCKHOLDERS. 
DU PONT WOULD BE ENJOINED FROM HAVING AS A DIRECTOR, OFFICER, OR
EMPLOYEE ANYONE WHO WAS SIMULTANEOUSLY AN OFFICER OR EMPLOYEE OF
GENERAL MOTORS, AND NO DIRECTOR, OFFICER, OR EMPLOYEE OF DU PONT COULD
SERVE AS A DIRECTOR OF GENERAL MOTORS WITHOUT COURT APPROVAL.  DU PONT
WOULD BE DENIED THE RIGHT TO ACQUIRE ANY ADDITIONAL GENERAL MOTORS
STOCK EXCEPT THROUGH GENERAL MOTORS' DISTRIBUTIONS OF STOCK OR
SUBSCRIPTION RIGHTS TO ITS STOCKHOLDERS. 

ON JUNE 6, 1958, GENERAL MOTORS SUBMITTED ITS OBJECTIONS TO THE
GOVERNMENT'S PROPOSAL.  IT ARGUED, INTER ALIA, THAT A DIVESTITURE ORDER
WOULD SEVERELY DEPRESS THE MARKET VALUE OF THE STOCK OF BOTH GENERAL
MOTORS AND DU PONT, WITH CONSEQUENT SERIOUS LOSS AND HARDSHIP TO
HUNDREDS OF THOUSANDS OF INNOCENT INVESTORS, AMONG THEM THOUSANDS OF
SMALL TRUSTS AND CHARITABLE INSTITUTIONS; THAT THERE WOULD BE A SIMILAR
DECLINE IN THE MARKET VALUES OF OTHER AUTOMOTIVE AND CHEMICAL STOCKS,
WITH SIMILAR LOSSES TO THE STOCKHOLDERS OF THOSE COMPANIES; THAT THE
TREMENDOUS VOLUME OF GENERAL MOTORS STOCK HANGING OVER THE MARKET FOR
TEN YEARS WOULD HAMPER THE EFFORTS OF GENERAL MOTORS AND OTHER
AUTOMOBILE MANUFACTURERS TO RAISE EQUITY CAPITAL; AND THAT ALL THIS
WOULD HAVE A SERIOUS ADVERSE EFFECT ON THE ENTIRE STOCK MARKET AND ON
GENERAL BUSINESS ACTIVITY.  GENERAL MOTORS COMPREHENSIVELY CONTENDED
THAT THE GOVERNMENT PLAN WOULD NOT BE "IN THE PUBLIC INTEREST" AS
REQUIRED BY THE MANDATE OF THIS COURT. 

THE DECREES PROPOSED BY THE AMICI CURIAE WERE FILED IN AUGUST OF
1958.  THESE PLANSS, LIKE DU PONT'S, CONTAINED PROVISIONS FOR PASSING
THE VOTE ON DU PONT'S GENERAL MOTORS SHARES ON TO THE ULTIMATE
STOCKHOLDERS OF DU PONT, CHRISTIANA, AND DELAWARE, EXCEPT THAT OFFICERS
AND DIRECTORS OF THE THREE COMPANIES, THEIR SPOUSES, AND OTHER PEOPLE
LIVING IN THEIR HOUSEHOLDS, AS WELL AS OTHER SPECIFIED PERSONS, WERE TO
BE TOTALLY DISENFRANCHISED.  BOTH PLANS ALSO PROHIBITED COMMON
DIRECTORS, OFFICERS, OR EMPLOYEES BETWEEN DU PONT, CHRISTIANA, AND
DELAWARE, ON THE ONE HAND, AND GENERAL MOTORS ON THE OTHER.  FURTHER,
BOTH PLANS PLACED RESTRICTIONS ON TRADE RELATIONS BETWEEN DU PONT AND
GENERAL MOTORS.  AMICUS DALLSTREAM, REPRESENTING THE DU PONT
STOCKHOLDERS, PROPOSED IN ADDITION A PROGRAM TERMED A "TAKEDOWN," BY
WHICH DU PONT WOULD CREATE A NEW CLASS OF STOCK, "DU PONT SPECIAL
COMMON," WHICH WOULD HAVE NO RIGHTS IN DU PONT'S GENERAL MOTORS STOCK
AND WHICH DU PONT STOCKHOLDERS COULD OBTAIN, ALONG WITH THEIR ALLOCABLE
PORTION OF THE GENERAL MOTORS SHARES OWNED BY DU PONT, AT TIMES
SUITABLE TO THEM, IN EXCHANGE FOR THEIR PRESENT DU PONT COMMON.  THIS
PROPOSAL WOULD HAVE DIFFERENT, AND IN SEVERAL RESPECTS MORE FAVORABLE,
TAX CONSEQUENCES THAN THOSE OF THE GOVERNMENT'S PLAN.  (FN4) 

IN A MEMORANDUM FILED ON SEPTEMBER 26, 1958, THE GOVERNMENT, ON THE
ASSUMPTION THAT DIVESTITURE WAS REQUIRED UNDER THE CLAYTON ACT,
SUGGESTED VARIOUS WAYS IN WHICH ITS DECREE MIGHT BE MODIFIED TO
AMELIORATE ITS HARSH TAX CONSEQUENCES.  THE GOVERNMENT STATED THAT IT
WOULD HAVE NO OBJECTIONS TO THE MODIFICATIONS DISCUSSED IN THE
MEMORANDUM BUT IT DID NOT SUBMIT AMENDMENTS TO ITS ORIGINAL PROPOSAL. 

ON THE SAME DAY, THE GOVERNMENT FILED A MOTION FOR A PRELIMINARY
INJUNCTION, SEEKING TO RESTRAIN DU PONT, CHRISTIANA, AND DELAWARE FROM
EXERCISING THEIR VOTING RIGHTS IN GENERAL MOTORS STOCK, TO PREVENT DU
PONT, CHRISTIANA, AND DELAWARE FROM HAVING ANY DIRECTOR, OFFICER, OR
EMPLOYEE IN COMMON WITH GENERAL MOTORS OR NOMINATING ANY SUCH PERSON TO
SERVE IN GENERAL MOTORS, AND TO PROHIBIT FURTHER ACQUISITIONS OF
GENERAL MOTORS STOCK BY THE THREE CORPORATIONS.  THE GOVERNMENT URGED
THAT SINCE ALL PARTIES WERE IN SUBSTANTIAL AGREEMENT ON THESE MEASURES
AS THE MINIMUM APPROPRIATE RELIEF, THE COURT SHOULD ADOPT THEM WITHOUT
DELAY.  THE COURT DENIED THE MOTION ON NOVEMBER 3, 1958, ON THE GROUND
THAT THE GOVERNMENT HAD FAILED TO SHOW A LIKELIHOOD OF IRREPARABLE
INJURY IN THE ABSENCE OF IMMEDIATE RELIEF AND THAT, WITH FINAL
DETERMINATION OF THE CASE NOT FAR DISTANT, IT WOULD BE UNDESIRABLE TO
BEGIN DECIDING ISSUES PIECEMEAL AT THAT LATE DATE. 

AFTER FURTHER PRELIMINARIES WHICH NEED NOT BE RECOUNTED, THE TRIAL OF
THE ISSUES ON THE APPROPRIATE RELIEF COMMENCED ON FEBRUARY 16, 1959,
AND CONTINUED TO A CONCLUSION ON APRIL 9, 1959.  THE GOVERNMENT
PRESENTED ITS EVIDENCE ON TWELVE HEARING DAYS; THE DEFENDANTS AND AMICI
ALSO PRESENTED EVIDENCE ON TWELVE DAYS; AND THE GOVERNMENT TOOK FOUR
MORE HEARING DAYS FOR THE PRESENTATION OF REBUTTAL EVIDENCE.  BRIEFS
WERE FILED AND THE CASE WAS SUBMITTED TO THE COURT IN JUNE 1959.  THE
COURT'S DECISION WAS ANNOUNCED ON OCTOBER 2, 1959.    THE PRINTED
RECORD OF THE PROCEEDINGS BELOW COVERS 3,340 PAGES.  OF THIS, TRIAL OF
THE ISSUES PERTAINING TO THE TERMS OF THE DECREE FILLS 2,380 PAGES.  AN
ADDITIONAL 543 PAGES CONTAIN EXHIBITS.  IN THE COURSE OF THE TRIAL
TWENTY-NINE WITNESSES WERE CALLED BY THE GOVERNMENT AND THIRTY-TWO BY
THE DEFENDANTS AND AMICI.  THE PRINTED EXHIBITS NUMBER 193 SUBMITTED BY
THE GOVERNMENT, THIRTY-TWO BY DU PONT, THIRTY BY GENERAL MOTORS, NINE
BY CHRISTIANA AND DELAWARE, AND ONE BY AMICUS DALLSTREAM.  THE BULK OF
THIS MASS OF EVIDENCE BORE PRINCIPALLY UPON DISPUTES OVER THE MARKET
AND TAX CONSEQUENCES OF DIVESTITURE OF DU PONT'S GENERAL MOTORS STOCK
AND UPON THE REQUIREMENT OF RESORT TO THIS REMEDY FOR THE EFFECTIVE
ENFORCEMENT OF SEC. 7. 

ON OCCASION THE GOVERNMENT OBJECTED TO THE ATTENTION THAT WAS BEING
FOCUSED ON THE DETAILS OF ITS PROPOSED DECREE.  THE GOVERNMENT INSISTED
THAT ITS ULTIMATE AIM WAS NOT TO FURTHER A SPECIFIC PLAN BUT TO OBTAIN
ANY REASONABLE ORDER OF DIVESTITURE.  HOWEVER, LATE IN THE TRIAL THE
GOVERNMENT INDICATED THAT ITS ORIGINAL DIVESTITURE PROPOSAL STOOD
BEFORE THE COURT UNAMENDED IN ANY DETAIL. 

"MR. REYCRAFT (CHIEF COUNSEL FOR THE GOVERNMENT):  ..  .  

  *         *         *         *         * 

"I MIGHT ALSO ADD THAT IT IS RATHER AN OBVIOUS THOUGHT THAT THE
JUDGMENT WHICH WE DID FILE WAS APPROVED BY NOT ONLY THE ASSISTANT
ATTORNEY GENERAL BUT THE ATTORNEY GENERAL, AND THAT WHILE I AM
AUTHORIZED HERE TO REPRESENT THE GOVERNMENT, I HAVE NO AUTHORITY TO
CHANGE THE DECISIONS THEY MAKE. 

"THE COURT:  IT IS MY UNDERSTANDING THEN THAT YOU ARE STANDING ON THE
DECREE THAT YOU PROPOSED BEFORE THIS HEARING STARTED? 

"MR. REYCRAFT:  THAT IS RIGHT, SIR. 

     *         *         *         *         * 

"MR. COX (COUNSEL FOR DU PONT):  ..  .  

"  ..  I  UNDERSTNAD MR. REYCRAFT'S POSITION NOW TO BE THAT HE STANDS
ON THE JUDGMENT THAT WAS FILED.  BUT IF THE GOVERNMENT SHOULD COME IN
ON ITS BRIEF WITH A BRAND NEW PROPOSAL SOMETIME, MAY IT PLEASE THE
COURT, WE MAY FIND OURSELVES IN A POSITION WHERE WE WILL HAVE TO COME
INTO COURT AND ASK FOR SOME KIND OF AN OPPORTUNITY TO HAVE A LOOK AT
THAT. 

"THE COURT:  THAT WILL DEPEND ENTIRELY ON THE EXTENT OR THE CHARACTER
OF THE DEVIATION FROM THE ORIGINAL PROPOSAL. 

"MR. COX:  I WOULD ASSUME THAT WOULD BE TRUE. 

"THE COURT:  FROM WHAT MR. REYCRAFT HAS SAID, I AM ASSUMING THAT THAT
IS THE DECREE, WITH PROBABLY MINOR CHANGES. 

"MR. REYCRAFT:  I HAVE NOTHING FURTHER, YOUR HONOR."  (FN5) 

THUS IT APPEARS THAT THE GOVERNMENT STOOD ON ITS ORIGINAL PROPOSAL,
RATHER THAN ON ALTERNATIVE SUGGESTIONS. 

AND SO ONE COMES TO CONSIDER HOW THE COURT DEALT WITH THE ISSUES
PRESENTED BY THE PARTIES. 

                                            III. 

AFTER DISPOSING OF TWO PRELIMINARY QUESTIONS - RULING IN FAVOR OF THE
AMENABILITY OF GENERAL MOTORS, CHRISTIANA, AND DELAWARE, AS PARTIES NOT
CONDEMNED AS VIOLATORS OF SEC. 7, TO THE ENFORCING POWER OF THE COURT,
AND AGAINST THE AMENABILITY TO DIRECT ENFORCEMENT OF HOLDERS OF BOTH DU
PONT AND DELAWARE STOCK WHO WERE NOT PARTIES TO THE SUIT - THE COURT
THUS DEFINED THE CENTRAL ISSUE BEFORE IT: 

"UNDER THE MANDATE OF THE SUPREME COURT IT IS THE RESPONSIBILITY OF
THIS COURT TO FRAME A JUDGMENT WHICH WILL ELIMINATE THE EFFECTS OF DU
PONT'S ACQUISITION OF STOCK OF GENERAL MOTORS WHICH ARE OFFENSIVE TO
THE STATUTE.  THE EFFECT OF THE ACQUISITION WHICH THE SUPREME COURT
FOUND TO BE OFFENSIVE TO THE STATUTE WAS THE 'REASONABLE PROBABILITY'
THAT THE ACQUISITION MIGHT RESULT IN RESTRAINT OR MONOPOLIZATION OF THE
MARKET FOR AUTOMOTIVE FABRICS AND FINISHES.  353 U.S. 586, 595, 607, 77
S. CT. 872, 1 L. ED. 2D 1057.  ACCORDINGLY, THE PROBLEM BEFORE THIS
COURT IS ONE OF DEVISING A JUDGMENT THAT WILL EFFECTIVELY GUARD AGAINST
THE PROBABILITY OF RESTRAINT OR MONOPOLIZATION WHICH THE SUPREME COURT
FOUND TO EXIST."  177 F. SUPP., AT 12-13. 

IN DISCHARGING ITS DUTY UNDER THIS MANDATE, PARTICULARLY SINCE
RELEVANT CIRCUMSTANCES MIGHT OFFER A CHOICE BETWEEN EFFECTIVE
ALTERNATIVES, THE COURT DEEMED IT APPROPRIATE NOT TO EXCLUDE FROM
CONSIDERATION THE VAST MULTIFORM INTERESTS AT STAKE - BOTH THE HUNDREDS
OF THOUSANDS OF TRULY INNOCENT STOCKHOLDERS AND THE BEARING ON THE
NATIONAL ECONOMY OF THE NATURE OF THE DISPOSITION OF DU PONT'S GENERAL
MOTORS HOLDINGS. 

"THIS DOES NOT MEAN THAT THE PRIVATE INTERESTS OF THE STOCKHOLDERS CAN
OUTWEIGH THE PUBLIC INTEREST IN A JUDGMENT THAT WILL EFFECTIVELY
DISSIPATE THE EFFECTS OF THE ACQUISITION FOUND TO BE UNLAWFUL.  BUT IT
DOES MEAN THAT IN THE OPINION OF THIS COURT THE PRIMARY PUBLIC PURPOSE
SHOULD BE ACHIEVED SO FAR AS POSSIBLE WITHOUT INFLICTING UNNECESSARY
INJURY UPON INNOCENT STOCKHOLDERS IN THE VARIOUS CORPORATIONS
INVOLVED.  THE PURPOSE OF THE JUDGMENT SHOULD BE REMEDIAL AND NOT
PUNITIVE.  HARTFORD-EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409, 65
S. CT. 373, 89 L. ED. 322; UNITED STATES V. NATIONAL LEAD CO., 332 U.S.
319, 67 S. CT. 1634, 91 L. ED. 2077.  NO HARSH AND OPPRESSIVE
CONSEQUENCES SHOULD BE VISITED UPON THE STOCKHOLDERS UNLESS IT CAN BE
SHOWN ON THE FACTS THAT THESE RESULTS ARE INESCAPABLE IF A DECREE IS TO
BE FRAMED THAT WILL COMPLY WITH THE MANDATE OF THE SUPREME COURT.  THE
CASES LEAVE NO DOUBT THAT THESE ARE CONSIDERATIONS WHICH THE COURT
SHOULD WEIGH IN THE FRAMING OF ITS FINAL JUDGMENT.  UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106, 185, 31 S. CT. 632, 55 L. ED. 663. 
COMPARE TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593, 604,
71 S. CT. 971, 95 L. ED.  1199."  177 F. SUPP., AT 13-14. 

THE GOVERNMENT'S FIRST MAJOR CONTENTION - THAT BY THE TERMS OF THE
CLAYTON ACT THE COURT HAD NO CHOICE BUT TO ORDER TOTAL DIVESTITURE -
WAS REJECTED ON THE BASIS OF AN ANALYSIS OF THE STATUTE AND THIS
COURT'S REAFFIRMATION OF THE "LARGE DISCRETION" POSSESSED BY THE
DISTRICT COURTS "TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE."  THE COURT PROCEEDED TO A CONSIDERATION OF THE
EVIDENCE INTRODUCED BY THE PARTIES.  THE FIRST SUBJECT WAS THE TAX
IMPACT OF THE GOVERNMENT'S PROPOSED DECREE.  EXTENSIVE EXPERT EVIDENCE
(MUCH OF WHICH WAS DERIVED FROM A STATISTICAL SURVEY FOUND BY THE COURT
TO HAVE BEEN SOUNDLY AND OJBECTIVELY CONDUCTED) INDICATED THAT
INDIVIDUAL STOCKHOLDERS OF DU PONT WOULD PAY INCOME TAXES AT A RATE OF
FIFTY PERCENT TO SIXTY PERCENT UNDER THE GOVERNMENT'S PLAN, AND THAT
THE TAXES PAYABLE BY SUCH PERSONS COULD AMOUNT TO $1,000,000,000 IF THE
VALUE OF THE GENERAL MOTORS SHARES WERE $50 PER SHARE, AND
APPROXIMATELY $770,000,000 IF $40 PER SHARE.  THE CAPITAL GAINS TAX ON
THE SALE OF THE GENERAL MOTORS STOCK ALLOCABLE TO CHRISTIANA AND
DELAWARE WOULD BE PERHAPS AS MUCH AS $200,000,000.  THE COURT
DETERMINED THAT VARIATIONS OF THE GOVERNMENT'S PLAN WOULD ALSO RESULT
IN VAST TAX LEVIES.  IT FOUND, FOR EXAMPLE, THAT IF A SINGLE
DISTRIBUTION WERE EMPLOYED TO DISPOSE OF THE 63,000,000 GENERAL MOTORS
SHARES, AT AN ASSUMED MARKET VALUE OF $45 PER SHARE THE TOTAL TAX COST
WOULD BE $588,044,000. 

A SECOND ECONOMIC CONSEQUENCE OF THE GOVERNMENT'S DIVESTITURE SCHEME
WOULD BE ITS IMPACT ON THE MARKET VALUE OF THE SECURITIES INVOLVED. 
THE GOVERNMENT RELIED ON THREE TYPES OF EVIDENCE TO SHOW THAT ITS PLAN
WOULD HAVE LITTLE INFLUENCE ON THE MARKET PRICES OF GENERAL MOTORS AND
DU PONT STOCK.  THE FIRST TYPE WAS EXPERT TESTIMONY THAT THERE WAS A
REGULAR FLOW OF INVESTMENT MONEY COMING INTO THE MARKET.  HOWEVER, UPON
DETAILED REVIEW OF THE TESTIMONY OF A DOZEN WITNESSES, THE COURT
CONCLUDED THAT "THERE WAS NO CONVINCING EVIDENCE IN THIS CATEGORY THAT
ANY SUBSTANTIALL PORTION OF THIS INVESTMENT MONEY WOULD BE DIRECTED TO
BUYING GENERAL MOTORS STOCK AT THE TRUE VALUE OF THE STOCK, IF THE
GOVERNMENT DECREE WERE IN EFFECT."  177 F. SUPP., AT 22. 

THE GOVERNMENT'S SECOND TYPE OF EVIDENCE RELATING TO THE MARKET
CONSEQUENCES OF ITS DECREE WAS THE STATISTICAL TESTIMONY OF ACADEMIC
AND PROFESSIONAL ANALYSTS.  THE COURT NOTED THAT IT WAS SHOWN NO CHARTS
OR STATISTICS RELATING TO A SITUATION "REMOTELY APPROACHING" THE FORCED
SALE OF 2,000,000 SHARES OF GENERAL MOTORS STOCK EACH YEAR FOR TEN
YEARS, ATTENDED BY ADDITIONAL SALES OF BOTH GENERAL MOTORS AND DU PONT
STOCK FOR TAX AND OTHER PURPOSES.  FURTHER, IT FOUND THAT ONE
GOVERNMENT EXPERT ADMITTED HE WOULD DEFER TO THE JUDGMENT OF INVESTMENT
BANKERS IN THE MATTER OF THE PRICE FOR WHICH THE GENERAL MOTORS STOCK
COULD BE SOLD; ANOTHER TESTIFIED THAT IN THE PAST AN INCREASE IN STOCK
SUPPLY OF TWENTY PERCENT HAD BEEN ASSOCIATED WITH PRICE DECLINES OF
BETWEEN TEN AND FIFTEEN PERCENT; THE TESTIMONY OF ANOTHER GOVERNMENT
WITNESS WAS BASED ON INADEQUATELY DRAWN STATISTICAL TABLES, AND HIS
DEMEANOR ON THE WITNESS STAND DEPRIVED HIS EVIDENCE OF CREDIBILITY; A
FOURTH WITNESS' OPINIONS HAD NO FOUNDATION IN FACTUAL EVIDENCE. 

THE GOVERNMENT'S THIRD TYPE OF EVIDENCE RELATED TO SECURITIES
OFFERINGS IN THE RECENT PAST.  THE COURT DETERMINED THAT THE
CIRCUMSTANCES OF THESE OFFERINGS - I.E., THEIR BACKGROUND, MAGNITUDE,
TIMING, AND DURATION - MADE THEM DISSIMILAR TO A DIVESTITURE OF DU
PONT'S INTEREST IN GENERAL MOTORS.  IN ANY EVENT MOST OF THESE
OFFERINGS DID HAVE A DEPRESSING EFFECT ON THE MARKET VALUE OF THE STOCK
INVOLVED.  NONE OF THIS EVIDENCE, THE COURT FOUND, GAVE ASSURANCE THAT
THE GOVERNMENT PROPOSAL WOULD NOT CAUSE SERIOUS LOSS ON THE SALE OF
GENERAL MOTORS AND DU PONT STOCK DURING THE DIVESTITURE PERIOD. 

THE DEFENDANTS COUNTERED THE GOVERNMENT'S CASE WITH A VARIETY OF
EVIDENCE.  TWO EXPERIENCED UNDERWRITERS TESTIFIED THAT THE GOVERNMENT'S
TEN-YEAR DIVESTITURE PLAN WOULD RESULT IN A DECLINE IN THE VALUE OF
GENERAL MOTORS STOCK OF FROM TWENTY PERCENT TO THIRTY PERCENT; THAT
HEAVY TAX SALES OF DU PONT WOULD LOWER ITS PRICE AT LEAST TWENTY-FIVE
PERCENT; THAT DISTRIBUTION OF GENERAL MOTORS STOCK IN LIEU OF CASH
DIVIDENDS WOULD BE EVEN WORSE FROM THIS STANDPOINT; THAT EVEN AN
EXTENSION OF THE DIVESTITURE PERIOD TO TWENTY YEARS WOULD NOT PREVENT
DECLINES IN THE NEIGHBORHOOD OF FIFTEEN PERCENT; THAT A FURTHER LOSS
ESTIMATED AT FROM $1.50 TO $2 PER SHARE SOLD IN UNDERWRITING EXPENSE
WOULD BE INCURRED BY CHRISTIANA AND DELAWARE; AND, FINALLY, THAT THE
TRUSTEE COULD NEVER MAKE THE SALES DURING THE DIVESTITURE PERIOD
ANYWAY, SINCE HE COULD NOT REALIZE A PRICE, IN THE WORDS OF THE
GOVERNMENT'S PROPOSED FINAL JUDGMENT, "SUFFICIENTLY HIGH TO REFLECT THE
FAIR VALUE AND TRUE WORTH OF THE STOCK." 

SEVERAL TRUST MANAGEMENT EXECUTIVES TESTIFIED THAT BECAUSE OF THE TAX
CONSEQUENCES OF THE GOVERNMENT'S DECREE AND THE DIFFICULTIES OF
ALLOCATING EQUITABLY THE GENERAL MOTORS SHARES RECEIVED AS DIVIDENDS BY
THE TRUSTS, THEY, AND PRESUMABLY OTHERS IN THEIR POSITION THROUGHOUT
THE COUNTRY, WOULD BE FORCED TO MAKE MASS SALES OF DU PONT STOCK. 
EXECUTIVES OF SEVERAL INSURANCE COMPANIES AND AN INVESTMENT TRUST
COMPANY PREDICTED DECLINES IN THE VALUE OF GENERAL MOTORS STOCK AND
EXPRESSED AN INTENTION TO BUY IT FOR THEIR CONCERNS ONLY AT
CONSIDERABLY REDUCED PRICES.  MANY WITNESSES CONCURRED IN THE VIEW THAT
THE GOVERNMENT'S DECREE WOULD RENDER FUTURE FINANCING BY GENERAL MOTORS
HIGHLY UNECONOMIC AND VERY DIFFICULT TO ACCOMPLISH. 

THE COURT THEN APPRAISED THE EVIDENCE BEARING ON POSSIBLE VOTING
CONTROL OF GENERAL MOTORS, UNDER A DECREE OF LESS THAN TOTAL
DIVESTITURE, BY CORPORATIONS OR INDIVIDUALS AFFILIATED WITH DU PONT. 
IT DETERMINED THAT THE GOVERNMENT'S BROADEST GROUPING - INDIVIDUALS WHO
WERE STOCKHOLDERS OF DELAWARE, ADDITIONAL INDIVIDUALS NAMED DU PONT,
AND CERTAIN CORPORATIONS IN WHICH BOTH GROUPS (SIXTY-FIVE PERSONS IN
ALL) OWN STOCK OR ON WHOSE BOARDS THEY SIT - WOULD, UNDER THE DU PONT
PLAN'S "PASS-THROUGH" OF VOTING RIGHTS, AGGREGATE THE VOTE OF ABOUT
EIGHT PERCENT OF THE TOTAL VOTE OF GENERAL MOTORS.  IT WAS UNCLEAR TO
THE COURT EITHER THAT THIS COMBINATION HAD A REASONABLE BASIS IN FACT
OR THAT, EVEN IF IT DID REPRESENT A COHESIVE BLOCK OF VOTES, IT WAS A
LARGE ENOUGH BLOCK TO EXERCISE ANY REAL CONTROL OVER GENERAL MOTORS. 
HOWEVER, THE COURT DEEMED IT UNNECESSARY TO RESOLVE THESE QUESTIONS,
SINCE IT INTENDED TO FRAME A DECREE TO GUARANTEE THAT CONCERTED ACTION
BY THESE STOCKHOLDERS WOULD BE PRECLUDED. 

ON THE BASIS OF ITS APPRAISAL OF THE EVIDENCE, THE COURT REACHED ITS
ESSENTIAL CONCLUSIONS.  THE FIRST QUESTION WAS WHAT PROVISION TO MAKE
WITH RESPECT TO DU PONT'S 63,000,000 SHARES OF GENERAL MOTORS.  IT
DETERMINED THAT A CAREFUL AND DETAILED PLAN FOR A "PASS-THROUGH" OF THE
VOTES OF THESE SHARES TO DU PONT'S STOCKHOLDERS AND AN INJUNCTION TO
PREVENT DU PONT AND GENERAL MOTORS FROM SHARING COMMON OFFICERS,
DIRECTORS, AND EMPLOYEES WERE NECESSARY.  THE COURT THEN CONSIDERED
WHETHER TITLE TO THE STOCK, STRIPPED OF THESE VITAL INCIDENTS OF
OWNERSHIP, MUST ALSO BE TAKEN FROM DU PONT, "IN ORDER TO REMOVE AND TO
GUARD AGAINST THE PROBABILITY OF RESTRAINT OR MONOPOLIZATION OF TRADE
WHICH WAS THE CONSEQUENCE THE SUPREME COURT FOUND TO BE OFFENSIVE TO
THE STATUTE."  177 F. SUPP., AT 40.  "THERE IS NO EVIDENCE," IT
CONCLUDED, "ON WHICH THE COURT COULD MAKE SUCH A FINDING."  177 F.
SUPP., AT 40. 

"IN ESSENCE, THEREFORE, WHAT WOULD BE LEFT IN DU PONT WOULD BE THE
MOST STERILE KIND OF AN INVESTMENT.  THE COURT NOTES IN THIS CONNECTION
THAT SECTION 7 OF THE CLAYTON ACT EXPRESSLY EXCLUDES FROM ITS OPERATION
'CORPORATIONS PURCHASING SUCH STOCK SOLELY FOR INVESTMENT AND NOT USING
THE SAME BY VOTING OR OTHERWISE' TO BRING ABOUT ANTI-COMPETITIVE
EFFECTS.  THERE WOULD THUS APPEAR TO BE A RECOGNITION ON THE PART OF
CONGRESS THAT THE HOLDING OF STOCK DOES NOT IN ALL INSTANCES CARRY WITH
IT THE POWER TO BRING ABOUT CONSEQUENCES OFFENSIVE TO THE STATUTE.  THE
COURT RECOGNIZES THAT THE SUPREME COURT HAS HELD THAT IN THE PAST DU
PONT HAS NOT HELD ITS STOCK IN GENERAL MOTORS SOLELY FOR INVESTMENT. 
THIS COURT IS OF THE OPINION, HOWEVER, THAT THE DIVESTITURE AND
ANCILLARY INJUNCTIVE PROVISIONS REFERRED TO HEREAFTER WILL BE EFFECTIVE
TO ASSURE THAT HEREAFTER GENERAL MOTORS STOCK WILL BE HELD BY DU PONT
SOLELY FOR INVESTMENT.           *         *         *         *
* 

IN THE CIRCUMSTANCES, THEREFORE, THE COURT FINDS THAT THERE IS
NOTHING IN THE RECORD MADE IN THE HEARING ON RELIEF OR IN THE RECORD IN
THE TRIAL IN CHIEF WHICH WOULD SUPPORT, EVEN BY INFERENCE, THE
CONCLUSION THAT DU PONT'S POSSESSION OF THE BARE LEGAL TITLE TO GENERAL
MOTORS STOCK, STRIPPED OF ITS RIGHT TO VOTE AND OF ITS RIGHT TO
REPRESENTATION ON THE BOARD OF GENERAL MOTORS, WOULD CREATE ANY
POSSIBILITY THAT THE STOCK WOULD HAVE ANY INFLUENCE ON THE PRACTICES
AND POLICIES OF GENERAL MOTORS OR COULD BE USED IN ANY WAY THAT WOULD
BE INCONSISTENT WITH THE MANDATE OF THE SUPREME COURT."  177 F. SUPP.,
AT 41. 

WHAT WAS ON THE OTHER SIDE OF THE LEDGER?  THE EVIDENCE INDICATED
THAT DIVESTITURE OF LEGAL TITLE WOULD VISIT UPON THOUSANDS OF INNOCENT
INVESTORS ADVERSE TAX AND MARKET CONSEQUENCES, ALWAYS SEVERE EVEN IF
VARYING IN DETAIL DEPENDING ON THE VARIATION OF THE GOVERNMENT'S PLAN. 
THE COURT CONCLUDED THAT ANY PLAN FOR DIVESTITURE OF LEGAL TITLE TO DU
PONT'S INTEREST IN GENERAL MOTORS WOULD EITHER IMPAIR THE VALUE OF THE
PROPERTY INTERESTS INVOLVED OR IMPOSE SEVERE TAX CONSEQUENCES ON DU
PONT'S STOCKHOLDERS.  MOREOVER, ANY PLAN THAT PRODUCED AS A BY-PRODUCT
THE ACCUMULATION OF VAST AMOUNTS OF CASH BY DU PONT WOULD HAVE THE
UNDESIRABLE RESULT OF ENHANCING GREATLY DU PONT'S ECONOMIC POWER AND
POSITION.  ALL THIS LED THE COURT TO HOLD THAT TOTAL DIVESTITURE, WHILE
UNNECESSARY TO REMOVE THE ANTICOMPETITIVE CONSEQUENCES OF DU PONT'S
OWNERSHIP OF THE GENERAL MOTORS STOCK, WOULD IMPOSE UNFAIR INJURY ON
THE STOCKHOLDERS OF THOSE COMPANIES. 

THE COURT DEALT WITH THE GOVERNMENT'S TWO OBJECTIONS TO ITS RESULT. 
THE FEAR THAT BLOCK VOTING OF THE PASSED-THROUGH VOTES ON THE GENERAL
MOTORS SHARES BY INVESTORS WHO WERE RELATED BY BLOOD OR BUSINESS
INTEREST WOULD LEAVE CONTROL OF GENERAL MOTORS IN THE HANDS OF DU
PONT'S CLOSE ASSOCIATES WAS MET BY PRECLUDING THE STOCKHOLDERS OF
CHRISTIANA AND DELAWARE, AS WELL AS OTHER SPECIFIED PERSONS, FROM
VOTING THEIR ALLOCABLE SHARES OF DU PONT'S GENERAL MOTORS STOCK.  THE
OBJECTION THAT RETENTION BY DU PONT OF ANY FINANCIAL STAKE IN GENERAL
MOTORS, EVEN ON BEHALF OF ITS STOCKHOLDERS, WOULD PROVIDE INCENTIVE TO
INTERCORPORATE FAVORITISM BETWEEN THE TWO, WHILE DEEMED MERELY A "NAKED
SUGGESTION," WAS ANSWERED BY PROVIDING SPECIFIC RELIEF AGAINST
PREFERENTIAL TRADE RELATIONS BETWEEN DU PONT AND GENERAL MOTORS.  IN
LIGHT OF THE PROOF AND OF THESE PRECAUTIONARY PROHIBITIONS, THE COURT
CONCLUDED THAT TO ORDER DIVESTITURE OF DU PONT'S TITLE TO THE GENERAL
MOTORS STOCK WOULD "CONSTITUTE A SERIOUS ABUSE OF DISCRETION."  177 F.
SUPP., AT 49.  (FN6)

     IV. 

THE QUESTIONS PRESENTED BY THIS APPEAL MUST BE CONSIDERED IN THE
SETTING OF THE PROCEEDINGS, SUMMARIZED ABOVE, THAT LED TO THE DISTRICT
COURT'S CONCLUSIONS IN FORMULATING ITS DECREE.  SINCE THE COURT REJECTS
THE GOVERNMENT'S CLAIM THAT TOTAL DIVESTITURE IS STATUTORILY REQUIRED
UPON A FINDING OF A VIOLATION OF SEC. 7 OF THE CLAYTON ACT, I NEED SAY
NO MORE ABOUT IT. 

IF A DISTRICT COURT IS NOT SUBJECT TO ANY STATUTORY REQUIREMENT TO
ORDER DIVESTITURE IN A SEC. 7 CASE, IT IS LEFT WITHOUT GUIDANCE OR
DIRECTION IN FASHIONING AN APPROPRIATE DECREE AS A COURT OF EQUITY?  OF
COURSE NOT.  THERE IS A BODY OF AUTHORITY, BOTH PROCEDURAL AND
SUBSTANTIVE, BY WHICH IT IS TO BE GUIDED.  IT IS, HOWEVER, WELL TO
REMEMBER THAT THE WISE ADMONITION THAT GENERAL PRINCIPLES DO NOT DECIDE
CONCRETE CASES HAS SHARP APPLICABILITY TO EQUITY DECREES.  ANY
APPARENTLY APPLICABLE POLICY OR RULE, ABSTRACTLY STATED, MUST BE
RELATED TO THE SPECIFIC CIRCUMSTANCES OF A PARTICULAR CASE IN WHICH IT
IS INVOKED AND APPLIED.  CARE MUST BE TAKEN TO CONSIDER PHRASES USED IN
RELATION TO THE PARTICULAR FACTS OF THE CASES RELIED ON. 

ONE PRINCIPLE HAS COMPREHENSIVE APPLICATION.  IT IS THAT COURTS OF
EQUITY, AS THIS COURT ADVISED THE DISTRICT COURT IN REMANDING THE CASE
TO IT TO FASHION THE APPROPRIATE RELIEF, "ARE CLOTHED 'WITH LARGE
DISCRETION TO MODEL THEIR JUDGMENTS TO FIT THE EXIGENCIES OF THE
PARTICULAR CASE.'"  353 U.S., AT 607-608.  THIS IS A COMMONPLACE, (FN7)
BUT ONE OF COMPELLINNG IMPORTANCE.  TO FORGET IT IS TO FORGET EQUITY'S
SPECIAL FUNCTION AND HISTORIC SIGNIFICANCE.  THE TRANSCENDENCE OF THIS
DOCTRINE DERIVES FROM THE RECOGNITION THAT WITHOUT IT THE EFFORT TO
DISPENSE EQUAL JUSTICE UNDER LAW WOULD ALL TOO OFTEN BE FRUSTRATED. 
THE LANDMARK SENTENCES OF HECHT CO. V. BOWLES, 321 U.S. 321, 329-330,
EXPRESS THE PRINCIPLES THAT MUST GUIDE THE CHANCELLOR: 

"WE ARE DEALING HERE WITH THE REQUIREMENTS OF EQUITY PRACTICE WITH A
BACKGROUND OF SEVERAL HUNDRED YEARS OF HISTORY  ..  .   THE ESSENCE OF
EQUITY JURISDICTION HAS BEEN THE POWER OF THE CHANCELLOR TO DO EQUITY
AND TO MOULD EACH DECREE TO THE NECESSITIES OF THE PARTICULAR CASE. 
FLEXIBILITY RATHER THAN RIGIDITY HAS DISTINGUISHED IT.  THE QUALITIES
OF MERCY AND PRACTICALITY HAVE MADE EQUITY THE INSTRUMENT FOR NICE
ADJUSTMENT AND RECONCILIATION BETWEEN THE PUBLIC INTEREST AND PRIVATE
NEEDS AS WELL AS BETWEEN COMPETING PRIVATE CLAIMS  ..  ."" 

IF, INDEED, EQUITY'S CHARACTERISTIC FLEXIBILITY IS DEEPLY ROOTED IN
HISTORY, THE ADMINISTRATION OF JUSTICE MAKES GREATER DEMANDS UPON IT
NOW THAN EVER BEFORE.  AS BUSINESS TRANSACTIONS BECOME INCREASINGLY
COMPLEX, THEY MULTIPLY AND COMPLICATE THE ISSUES PRESENTED TO COURTS
EVEN IN LITIGATION OF ORDINARY DIMENSIONS.  HOW MUCH MORE IS THIS TRUE
OF A SUIT OF THE MAGNITUDE AND REACH OF THE ONE BEFORE US, WITH
INEVITABLE IMPACT FAR BEYOND THE INTERESTS OF THE IMMEDIATE PARTIES. 
IN SUCH A CASE WE NEED TO BE SPECIALLY MINDFUL THAT THE PURPOSE OF
EQUITY JURISDICTION IS TO ADAPT FAMILIAR PRINCIPLES OF LAW TO
INTRICATE, ELUSIVE, AND UNFAMILIAR FACTS.  AS ONE MEMBER OF THIS COURT
RECENTLY PUT IT:  "EQUITY DECREES ARE NOT LIKE THE PACKAGED GOODS THIS
MACHINE AGE PRODUCES.  THEY ARE UNIFORM ONLY IN THAT THEY SEEK TO DO
EQUITY IN A GIVEN CASE."  UNITED STEELWORKERS OF AMERICAN V. UNITED
STATES, 361 U.S. 39, 62, 71 (DISSENTING OPINION).  (FN8) 

THE DISTRICT COURT WAS DUTY BOUND TO EXERCISE DISCRETION - WHICH
MEANS TO WEIGH CONTENDING CONSIDERATIONS AND CONFLICTING EVIDENCE AS A
MATTER OF JUDGMENT - IN FRAMING A DECREE TO MEET THE NEEDS OF THE
CASE.  IT COULD NOT ESCAPE EXERCISING DISCRETION - THAT IS, EXERCISING
ITS JUDGMENT WITHIN AN AREA OF ALLOWABLE CHOICE - WHICH THIS COURT
COMMITTED TO IT.  DISCRETION PRECLUDES WHIMSY OR CAPRICE.  DISCRETION
MEANS THE JUDICIAL DISCRETION OF A COURT OF EQUITY.  WHERE PRECEDENT OR
JUDICIAL TRADITION HAS ESTABLISHED LIMITATIONS ON THE CHANCELLOR'S
RANGE OF CHOICE, HE MUST RESPECT THEM.  WHAT LIMITATIONS CONFINED THE
COURT BELOW?  CONSIDERATION OF THE RELEVANT AUTHORITIES ON THE
FORMULATION OF ANTITRUST DECREES BECOMES NECESSARY. 

FIRST, WHAT WAS OPEN TO CONSIDERATION IN THE DISTRICT COURT?  ITS
OVERRIDING CONCERN HAD TO BE FOR THE PROTECTION OF THE PUBLIC
INTEREST.  IT WAS ITS DUTY TO HEAR ALL THE EVIDENCE BEARING ON THAT
QUESTION AND IN ANY CONFLICT WITH PRIVATE INTERESTS DECISIVELY TO
RESOLVE DOUBTS IN FAVOR OF THE GENERAL WELFARE.  THE ACCOUNT OF THE
DISTRICT COURT'S PROCEDURES, AND OF THE CONSIDERATIONS ON WHICH IT
REACHED ITS REFLECTIVE CONCLUSIONS, IN PARTS II AND III OF THIS OPINION
ESTABLISHES, I SUBMIT, THAT IT FULLY CONFORMED TO THIS ESSENTIAL
REQUIREMENT.  ALTHOUGH IT CONSIDERED THE GOVERNMENT'S CASE ON THE
LIKELIHOOD OF BLOCK VOTING OF THE VOTES OF THE GENERAL MOTORS SHARES
PASSED THROUGH TO DELAWARE AND CHRISTIANA OF DOUBTFUL STRENGTH, IT
STERILIZED THOSE SHARES TO PREVENT THEIR BEING VOTED AT ALL.  AGAIN,
ALTHOUGH IT FOUND NO PROOF IN THE RECORD TO SUPPORT THE GOVERNMENT'S
"NAKED SUGGESTION" CONCERNING THE PROBABILITY OF FUTURE PREFERENTIAL
TRADE RELATIONS BETWEEN GENERAL MOTORS AND DU PONT, IT CONSTRUCTED A
SET OF PROHIBITIONS AGAINST SUCH DEALING BETWEEN THE TWO ENTERPRISES. 
AS ALREADY NOTED, THE COURT FASHIONED ITS DECREE IN DEFERENCE TO ITS
CONCEPTION OF ITS "PRIMARY DUTY" TO DEVISE A JUDGMENT "THAT WILL
EFFECTIVELY GUARD AGAINST THE PROBABILITY OF RESTRAINT OR
MONOPOLIZATION WHICH THE SUPREME COURT FOUND TO EXIST."  177 F. SUPP.,
AT 13. 

DID THE DISTRICT COURT FAIL IN ITS DUTY BECAUSE IT DEEMED RELEVANT
FOR CONSIDERATION AS ONE FACTOR IN STRIKING THE BALANCE INVOLVED IN ITS
CONCLUSION THE CONSEQUENCES OF DIVESTITURE TO THOUSANDS UPON THOUSANDS
OF BLAMELESS STOCKHOLDERS AND OTHER SO-CALLED PRIVATE INTERESTS?  THE
DECISIONS OF THIS COURT GAVE FULL WARRANT TO THE DISTRICT COURT THAT IT
DID NOT EXCEED ITS DISCRETIONARY POWERS IN DOING SO.  THE WEIGHTY WORDS
OF UNITED STATES V. AMERICAN TOBACCO CO., 221 U.S. 106, 185, ARE
APPOSITE: 

"IN CONSIDERING THE SUBJECT  ..  THHREE DOMINANT INFLUENCES MUST
GUIDE OUR ACTION:  1.  THE DUTY OF GIVING COMPLETE AND EFFICACIOUS
EFFECT TO THE PROHIBITIONS OF THE STATUTE; 2, THE ACCOMPLISHING OF THIS
RESULT WITH AS LITTLE INJURY AS POSSIBLE TO THE INTEREST OF THE GENERAL
PUBLIC; AND, 3, A PROPER REGARD FOR THE VAST INTERESTS OF PRIVATE
PROPERTY WHICH MAY HAVE BECOME VESTED IN MANY PERSONS AS A RESULT OF
THE ACQUISITION EITHER BY WAY OF STOCK OWNERSHIP OR OTHERWISE OF
INTERESTS IN THE STOCK OR SECURITIES OF THE COMBINATION WITHOUT ANY
GUILTY KNOWLEDGE OR INTENT IN ANY WAY TO BECOME ACTORS OR PARTICIPANTS
IN THE WRONGS WHICH WE FIND TO HAVE INSPIRED AND DOMINATED THE
COMBINATION FROM THE BEGINNING  ..  ."" 

AND IN STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, 78, THE COURT
ADMONISHED THAT "THE FACT MUST NOT BE OVERLOOKED THAT INJURY TO THE
PUBLIC BY THE PREVENTION OF AN UNDUE RESTRAINT ON, OR THE
MONOPOLIZATION OF TRADE OR COMMERCE IS THE FOUNDATION UPON WHICH THE
PROHIBITIONS OF THE STATUTE REST, AND MOREOVER THAT ONE OF THE
FUNDAMENTAL PURPOSES OF THE STATUTE IS TO PROTECT, NOT TO DESTROY,
RIGHTS OF PROPERTY."  THE IMPORTANCE OF THESE CONSIDERATIONS WAS
REITERATED IN CONTINENTAL INS. CO. V. UNITED STATES, 259 U.S. 156, WITH
THE GOVERNMENT ACTIVELY CHAMPIONING THEIR PROPRIETY, AND SUGGESTING
THAT "'IT SEEMED WISE NOT TO AMPUTATE ANY MORE THAN WAS NECESSARY TO
SECURE THE GREAT POLICY OF THE SHERMAN LAW.'"  259 U.S., AT 169.  IN
UNITED STATES V. UNITED SHOE MACHINERY CO., 247 U.S. 32, 46, THE COURT
LABELED DISSOLUTION A REMEDY "EXTREME, EVEN IN ITS MILDEST DEMANDS" AND
COUNSELED "IF THERE BE NEED FOR THIS THE DIFFICULTIES OF ACHIEVEMENT
SHOULD NOT DETER; BUT THE DIFFICULTIES MAY ADMONISH AGAINST THE NEED
..  .""  THIS HOLDS FOR DIVESTITURE.  (FN9) 

THIS COURT'S DECISIONS LEAVE NO DOUBT THAT IT WAS PROPER FOR THE
DISTRICT COURT TO ATTEND TO THE LIKELIHOOD OF DANGER TO THE PUBLIC
WELFARE THAT MIGHT ARISE FROM THE SERIOUS ADVERSE MARKET CONSEQUENCES
OF DIVESTITURE AND TO THE LIKELIHOOD OF EXTENSIVE LOSS TO INNOCENT
INVESTORS THROUGH BOTH MARKET DECLINE AND TAX LEVY.  IT IS APPARENT
THAT THE DEPARTMENT OF JUSTICE RECOGNIZED THE RELEVANCE OF THE TAX
IMPACT.  IN A STATEMENT ON PROPOSED LEGISLATION TO ALLEVIATE THE TAX
BURDEN OF DIVESTITURE DECREES, ROBERT A. BICKS, THEN ACTING ASSISTANT
ATTORNEY GENERAL IN CHARGE OF THE ANTITRUST DIVISION OF THE JUSTICE
DEPARTMENT, SAID: 

"BEAR IN MIND, THE 1890 SHERMAN AND THE 1914 CLAYTON ACTS, THE BASIC
ANTITRUST STATUTES, BECAME LAW BEFORE THE INCOME TAX WAS A REALITY. 
AND THE LANDMARK ANTITRUST CASES - DISSOLVING ILLEGAL TRUSTS AND
MONOPOLIES VIA DIVESTITURE - WERE LARGELY A PRODUCT OF AN ERA MARKED BY
NO INCOME TAX OR MUCH LOWER TAX RATES.  INDEED, THERE IS REAL BASIS FOR
CONCLUDING THAT SOME BENCH-MARK ANTITRUST DIVESTITURE CASES  ..  MIIGHT
WELL NOT HAVE BEEN DECREED HAD TODAY'S TAX RATES PREVAILED."  BICKS,
STATEMENT ON H.R. 7361 AND H.R. 8126 BEFORE THE HOUSE COMMITTEE ON WAYS
AND MEANS, JULY 20, 1959, 4 ANTITRUST BULLETIN 557 (1959). 

IT IS OBVIOUS FROM THE CONTEXT OF THESE REMAKRS THAT THEIR IMMEDIATE
OBJECTIVE WAS TO SMOOTH THE WAY TOWARD OBTAINING DIVESTITURE IN THIS
VERY CASE.  (FN10) 

IN A CASE SUCH AS DU PONT, IN WHICH THE CHALLENGED TRANSACTION
OCCURRED APPROXIMATELY THIRTY YEARS PRIOR TO THE INITIATION OF SUIT,
THE FORCE OF THESE CONSIDERATIONS IS GREATLY ENHANCED.  THE
RELATIONSHIP BETWEEN GENERAL MOTORS AND DU PONT STOOD UNCONDEMNED BY
THE GOVERNMENT THROUGH SUCCESSIVE ADMINISTRATIONS THROUGHOUT THAT
PERIOD.  THIS IS NOT REMOTELY TO HINT ANY FORM OF ESTOPPEL AGAINST
RESORT TO DIVESTITURE AS RELIEF FOR THE ILLEGALITY, HOWEVER BELATEDLY
ESTABLISHED, WERE IT OTHERWISE THE REQUIRED MEANS FOR CORRECTION OF
PAST MISCONDUCT OR ITS FUTURE AVOIDANCE.  I DO MAINTAIN THAT, AS THIS
COURT HAS RECOGNIZED, IT WAS ALTOGETHER PROPER FOR THE DISTRICT COURT -
EVEN INCUMBENT UPON IT - TO TAKE "ACCOUNT OF WHAT WAS DONE DURING THAT
TIME - THE MANY MILLIONS OF DOLLARS SPENT, THE DEVELOPMENTS MADE, AND
THE ENTERPRISES UNDERTAKEN, THE INVESTMENTS BY THE PUBLIC THAT HAVE
BEEN INVITED AND ARE NOT TO BE IGNORED."  UNITED STATES V. UNITED
STATES STEEL CORP., 251 U.S. 417, 453. 

IN SHORT, THE FACTORS THAT INFLUENCED THE DISTRICT COURT WERE FIT
CONSIDERATIONS FOR JUDICIAL SCRUTINY.  BUT WE STILL HAVE TO INQUIRE
WHAT CRITERIA WERE OPEN TO THE DISTRICT COURT FOR APPRAISING THE
RELEVANT VARIABLES AND HOW THAT COURT'S DETERMINATIONS ARE TO BE
REVIEWED BY THIS COURT. 

THE VERY FOUNDATION FOR JUDGMENT IN REVIEWING A DISTRICT COURT'S
DECREE IN A CASE LIKE THIS IS THE INHERENT NATURE OF ITS TASK IN
ADJUDICATING CLAIMS ARISING UNDER THE ANTITRUST LAWS.  THE SWEEPING
GENERALITY OF THE ANTITRUST LAWS DIFFERENTIATES THEM FROM ORDINARY
STATUTES.  "AS A CHARTER OF FREEDOM," WROTE MR. CHIEF JUSTICE HUGHES
FOR THE COURT, "THE SHERMAN ACT HAS A GENERALITY AND ADAPTABILITY
COMPARABLE TO THAT FOUND TO BE DESIRABLE IN CONSTITUTIONAL
PROVISIONS."  APPALACHIAN COALS, INC., V. UNITED STATES, 288 U.S. 344,
359-360.  THIS IS NO LESS TRUE OF THE CLAYTON ACT'S PROHIBITION "WHERE
THE EFFECT  ..  MAAY BE TO SUBSTANTIALLY LESSEN COMPETITION." 
CORRESPONDINGLY BROAD IS THE AREA WITHIN WHICH A DISTRICT COURT MUST
MOVE TO FIT THE REMEDY TO THE RANGE OF THE OUTLAWRY.  FAR-REACHING
RESPONSIBILITY IS VESTED IN THE COURT CHARGED WITH FASHIONING A DECREE
AND THE DECREE IT FASHIONS MUST BE JUDGED ON REVIEW IN LIGHT OF THIS
RESPONSIBILITY.    "IN THE ANTI-TRUST FIELD THE COURTS HAVE BEEN
ACCORDED, BY COMMON CONSENT, AN AUTHORITY THEY HAVE IN NO OTHER BRANCH
OF ENACTED LAW  ..  .   THEY WOULD NOT HAVE BEEN GIVEN, OR ALLOWED TO
KEEP, SUCH AUTHORITY IN THE ANTI-TRUST FIELD, AND THEY WOULD NOT SO
FREELY HAVE ALTERED FROM TIME TO TIME THE INTERPRETATION OF ITS
SUBSTANTIVE PROVISIONS, IF COURTS WERE IN THE HABIT OF PROCEEDING WITH
THE SURGICAL RUTHLESSNESS THAT MIGHT COMMEND ITSELF TO THOSE SEEKING
ABSOLUTE ASSURANCE THAT THERE WILL BE WORKABLE COMPETITION, AND TO
THOSE AIMING AT IMMEDIATE REALIZATION OF THE SOCIAL, POLITICAL, AND
ECONOMIC ADVANTAGES OF DISPERSAL OF POWER."  UNITED STATES V. UNITED
SHOE MACHINERY CORP., 110 F. SUPP. 295, 348 (A DECISION AFFIRMED BY
THIS COURT WITHOUT OPINION, 347 U.S. 521). 

PARTLY ON THE BASIS OF THESE VIEWS, THE ATTORNEY GENERAL'S NATIONAL
COMMITTEE TO STUDY THE ANTITRUST LAWS RECOMMENDED THAT DIVESTITURE "NOT
BE DECREED AS A PENALTY," THAT IS "NOT BE INVOKED WHERE LESS DRASTIC
REMEDIES WILL ACCOMPLISH THE PURPOSE OF THE LITIGATION," AND THAT
POSSIBLE DISRUPTION OF INDUSTRY AND MARKETS AS WELL AS EFFECT ON THE
PUBLIC, INVESTORS, CUSTOMERS, AND EMPLOYEES BE TAKEN INTO ACCOUNT. 
REPORT OF THE ATTORNEY GENERAL'S NATIONAL COMMITTEE TO STUDY THE
ANTITRUST LAWS (1955), PP. 355-356.  THIS STATEMENT FAIRLY REFLECTS THE
VIEWS OF THIS COURT, TO THE EFFECT THAT A DECREE MUST NOT "IMPOSE
PENALTIES IN THE GUISE OF PREVENTING FUTURE VIOLATIONS," HARTFORD
EMPIRE CO. V. UNITED STATES, 323 U.S. 386, 409; THAT THE LEAST HARSH OF
AVAILABLE MEASURES SHOULD BE ADOPTED WHEN THE COURT IS SATISFIED THAT
THEY WILL BE EFFECTIVE, E.G., TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593, 603 (CONCURRING OPINION); AND THAT INJUNCTIVE
RELIEF MAY WELL BE AN ADEQUATE SANCTION AGAINST CONTINUED WRONGDOING,
ID., AT 604 (CONCURRING OPINION), AND STANDARD OIL CO. V. UNITED
STATES, 221 U.S. 1, 77.  ADD TO THIS THAT WE HAVE RECOGNIZED A SOUND
BASIS IN REASON FOR DISTINGUISHING PALPABLY ILLEGAL ACTIVITY FROM
CONDUCT THAT WAS ARGUABLY PERMISSIBLE, AND FOR DEALING WITH THE LATTER
LESS SEVERELY THAN THE FORMER.  SEE FEDERAL TRADE COMM'N V. NATIONAL
LEAD CO., 352 U.S. 419, 429; UNITED STATES V. UNITED STATES GYPSUM CO.,
340 U.S. 76, 89-90. 

THE PRINCIPLES THUS PRONOUNCED BY THIS COURT WERE DULY HEEDED BY THE
DISTRICT COURT.  THE SALIENT FEATURE OF ITS ATTITUDE WAS ITS
DISPOSITION TO FAVOR THE GOVERNMENT'S CLAIMS ON BEHALF OF THE PUBLIC
INTEREST.  IT EVEN REJECTED THE DEFENDANTS' ARGUMENT, BASED ON NATIONAL
LEAD AND GYPSUM, SUPRA, (FN11) THAT IT SHOULD TAKE INTO ACCOUNT THAT
THE QUESTION WHETHER THE ACQUISITION VIOLATED THE LAW WAS, TO SAY THE
LEAST, REASONABLY IN DOUBT, AND THAT THEREFORE NO BLAME SHOULD BE
IMPUTED TO THE OFFICERS AND DIRECTORS OF THE DEFENDANTS.  "THE COURT
..  APPPROACHES THE PROBLEM ON THE ASSUMPTION THAT THE APPROPRIATE
RELIEF IS THAT WHICH IS NECESSARY TO ELIMINATE THE EFFECTS OF THE
ACQUISITION OFFENSIVE TO THE STATUTE, NOTWITHSTANDING THAT THE
ACQUISITION MIGHT REASONABLY HAVE BEEN BELIEVED TO BE PERMISSIBLE WHEN
MADE."  177 F. SUPP., AT 14. 

THE GOVERNMENT URGES, HOWEVER, THAT DIVESTITURE IS, IF NOT THE
REQUIRED RELIEF, AT LEAST THE NORMAL AND ORDINARY RELIEF IN STOCK
ACQUISITION CASES.  THE CONTENTION IS THAT, AS THE SAFEST REMEDY, I.E.,
THE SUREST OF ANTICOMPETITIVE RESULTS, DIVESTITURE IS, AND HAS BEEN
CONSIDERED TO BE, THE PREFERRED RELIEF FOR ALL SAVE A FEW EXCEPTIONAL
CASES.  SUPPORT FOR THIS VIEW IS DRAWN FROM A LONG LINE OF CASES IN
WHICH DIVESTITURE HAS BEEN DECREED.  THE CONTENTION CALLS FOR DETAILED
SCRUTINY. 

THE OBJECTIVES OF DIVESTITURE WERE THUS STATED IN SCHINE CHAIN
THEATRES, INC., V. UNITED STATES, 334 U.S. 110, 128-129: 

"DIVESTITURE OR DISSOLUTION MUST TAKE ACCOUNT OF THE PRESENT AND
FUTURE CONDITIONS IN THE PARTICULAR INDUSTRY AS WELL AS PAST
VIOLATIONS.  IT SERVES SEVERAL FUNCTIONS:  (1) IT PUTS AN END TO THE
COMBINATION OR CONSPIRACY WHEN THAT IS ITSELF THE VIOLATION.  (2) IT
DEPRIVES THE ANTITRUST DEFENDANTS OF THE BENEFITS OF THEIR CONSPIRACY. 
(3) IT IS DESIGNED TO BREAK UP OR RENDER IMPOTENT THE MONOPOLY POWER
WHICH VIOLATES THE ACT  ..  .""  (FN12) 

THIS TRIPARTITE FORMULATION SUMMARIZES THE CONSIDERATIONS THAT HAVE
GUIDED THIS COURT'S RULINGS ON DIVESTITURE.  IN STANDARD OIL CO. V.
UNITED STATES, 221 U.S. 1, THE SOURCE OF MODERN ANTITRUST LAW, THE
DEFENDANTS WERE CHARGED WITH COMBINATION AND CONSPIRACY TO RESTRAIN
TRADE IN AND MONOPOLIZE INTERSTATE AND FOREIGN COMMERCE IN PETROLEUM
PRODUCTS, IN VIOLATION OF SECS. 1 AND 2 OF THE SHERMAN ACT.  THE LOWER
COURT FOUND BOTH PROVISIONS OFFENDED BY A COMBINATION OF SEVEN
INDIVIDUAL DEFENDANTS AND THIRTY-EIGHT CORPORATE DEFENDANTS TO LODGE IN
THE STANDARD OIL CO. OF NEW JERSEY SUBSTANTIAL STOCK OWNERSHIP OF AND
CONTROL OVER MANY SUBSIDIARY CORPORATIONS IN THE PETROLEUM INDUSTRY AND
TO CAUSE STANDARD OIL TO MANAGE THEIR AFFAIRS SO AS TO THROTTLE
COMPETITION, FINDINGS SUSTAINED HERE.  COMING TO THE PROBLEM OF REMEDY,
WHILE ACKNOWLEDGING THAT "ORDINARILY" INJUNCTIVE RELIEF WOULD BE
ADEQUATE TO RESTRAIN REPETITION OF THE ILLEGAL ACTIVITY, THE COURT
FOUND THAT THE SITUATION PRESENTED BY THE STANDARD OIL AGGRANDIZEMENT
CALLED FOR STIFFER MEASURES:  "BUT IN A CASE LIKE THIS, WHERE THE
CONDITION WHICH HAS BEEN BROUGHT ABOUT IN VIOLATION OF THE STATUTE, IN
AND OF ITSELF, IS NOT ONLY A CONTINUED ATTEMPT TO MONOPOLIZE, BUT ALSO
A MONOPOLIZATION, THE DUTY TO ENFORCE THE STATUTE REQUIRES THE
APPLICATION OF BROADER AND MORE CONTROLLING REMEDIES."  221 U.S., AT
77.  RECOGNITION OF THIS NEED - THAT INTERCORPORATE CONNECTIONS CALL
FOR SEVERANCE WHEN PERSISTENCE OF THE RELATIONSHIP IN ITSELF WOULD
CONSTITUTE A VIOLATION OF THE ANTITRUST LAWS - HAS BEEN STEADFASTLY
ADHERED TO.  "DISSOLUTION OF THE COMBINATION WILL BE ORDERED WHERE THE
CREATION OF THE COMBINATION IS ITSELF THE VIOLATION."  UNITED STATES V.
CRESCENT AMUSEMENT CO., 323 U.S. 173, 189.  IT HAS BEEN THE CONTROLLING
FACTOR IN THE MAJORITY OF THE DIVESTITURE DECREES IN THE INTERVENING
YEARS, SINCE MOST SITUATIONS BEFORE THE COURT HAVE SIMILARLY DEMANDED
THIS RELIEF.  (FN13) 

THE SECOND ELEMENT OF THE SCHINE RATIONALE - DEPRIVING ANTITRUST
DEFENDANTS "OF THE BENEFITS OF THEIR CONSPIRACY" - IS EQUALLY WELL
ESTABLISHED.  UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S. 173,
WAS A SHERMAN ACT SUIT IN WHICH CERTAIN MOTION PICTURE EXHIBITORS WERE
FOUND TO HAVE USED THEIR COMBINED BUYING POWER TO OBTAIN TERMS MORE
FAVORABLE THAN THOSE RECEIVED BY THEIR INDEPENDENT COMPETITORS IN
LICENSING FILMS, WHEREBY INDEPENDENTS WERE DRIVEN FROM THE FIELD AND A
MONOPOLY IN THEATER OPERATION DEVELOPED IN MANY TOWNS.  EACH CORPORATE
EXHIBITOR WAS REQUIRED TO DIVEST ITSELF OF ITS INTEREST IN ANY OTHER
CORPORATE DEFENDANT OR ITS AFFILIATES. 

"THOSE WHO VIOLATE THE ACT MAY NOT REAP THE BENEFITS OF THEIR
VIOLATIONS AND AVOID AN UNDOING OF THEIR UNLAWFUL PROJECT ON THE PLEA
OF HARDSHIP OR INCONVENIENCE.  THAT PRINCIPLE IS ADEQUATE HERE TO
JUSTIFY DIVESTITURE OF ALL INTEREST IN SOME OF THE AFFILIATES SINCE
THEIR ACQUISITION WAS PART OF THE FRUITS OF THE CONSPIRACY."  323 U.S.,
AT 189.  (FN14) 

THE THIRD SCHINE OBJECTIVE OF DIVESTITURE WAS "TO BREAK UP OR RENDER
IMPOTENT THE MONOPOLY POWER WHICH VIOLATES THE ACT."  THE ROLE OF
DIVESTITURE IN MEETING THIS NEED WAS SPELLED OUT IN THE CRESCENT CASE: 

"COMMON CONTROL WAS ONE OF THE INSTRUMENTS IN BRINGING ABOUT UNITY OF
PURPOSE AND UNITY OF ACTION AND IN MAKING THE CONSPIRACY EFFECTIVE.  IF
THAT AFFILIATION CONTINUES, THERE WILL BE TEMPTING OPPORTUNITY FOR
THESE EXHIBITORS TO CONTINUE TO ACT IN COMBINATION AGAINST THE
INDEPENDENTS.  THE PROCLIVITY IN THE PAST TO USE THAT AFFILIATION FOR
AN UNLAWFUL END WARRANTS EFFECTIVE ASSURANCE THAT NO SUCH OPPORTUNITY
WILL BE AVAILABLE IN THE FUTURE  ..  .""  323 U.S., AT 189-190. 

THESE, THEN, ARE THE JUSTIFIABLE BASES FOR COMPELLING DIVESTITURE. 
THEY EXPLAIN AND DEFINE THE AUTHORITIES ON WHICH THE GOVERNMENT
RELIES.  DO THEY, OR ANY OF THEM, INVALIDATE THE DISTRICT COURT'S
REFUSAL TO DECREE DIVESTITURE IN THE CIRCUMSTANCES OF THIS CASE AND
JUSTIFY THIS COURT IN OVERRULING THAT COURT'S EXERCISE OF DISCRETION IN
FINDING DIVESTITURE UNCALLED FOR? 

THE NOTION THAT THE VERY EXISTENCE OF AN INTEREST BY DU PONT IN THE
STOCK OF GENERAL MOTORS CONSTITUTES A VIOLATION OF THE ACT NEED NOT
DETAIN US.  IT CANNOT BE QUESTIONED THAT, AS THE COURT'S OPINION ON THE
MERITS IN THIS CASE MAKES CLEAR, THE VIOLATION CONDEMNED IS THE EFFECT
OF THE STOCKHOLDING ON COMPETITION, NOT THE STOCKHOLDING AS SUCH. 
(FN15)  TO BE SURE, THIS ILLEGAL TENDENCY TO LESSEN COMPETITION MAY BE
ENDED BY TERMINATING ANY INTERCORPORATE RELATIONSHIP.  BUT JUST AS
SURELY THE UNLAWFULNESS OF THE TENDENTIOUS STOCKHOLDING MAY BE ENDED BY
PREVENTING ITS HARMFUL CONSEQUENCES. 

NOR IS DIVESTITURE REQUIRED AS A MEANS OF DEPRIVING THE DEFENDANT OF
THE FRUITS OF ITS VIOLATION.  WHILE DU PONT'S INTEREST IN GENERAL
MOTORS MIGHT SERVE AS A TOOL FOR THE ACCOMPLISHMENT OF ANTITRUST
VIOLATIONS, IT IS CERTAINLY NOT THE FRUIT OF ANY SUCH VIOLATION.  THE
FRUIT - THE BENEFIT - OF A VIOLATION OF SEC. 7 IS THE UNFAIR
COMPETITIVE POSITION OF ONE CORPORATION THROUGH ITS STOCK INTEREST IN
ANOTHER.  EFFECTIVE TERMINATION OF THIS COMPETITIVE ADVANTAGE WAS
PRECISELY THE DESIGN OF THE ELABORATE INJUNCTIVE PROVISIONS DEVISED BY
THE DISTRICT COURT. 

THE FINAL DESIDERATUM - VITIATING A MONOPOLY POWER - IS NOT LITERALLY
APPLICABLE TO THE DU PONT SITUATION, SINCE THE DISTRICT COURT DISMISSED
THE MONOPOLY CHARGE UNDER THE SHERMAN ACT AND THIS COURT REFUSED TO
REVIEW THE DISMISSAL.  353 U.S., AT 588, N. 5.  BUT EVEN IF THIS
CRITERION WERE CARRIED OVER INTO A CLAYTON ACT SETTING TO ENFORCE THE
DESIRABILITY OF AVOIDING EVERY POTENTIALITY OF MONOPOLY POWER, THERE IS
NO COMPULSION TO DECREE DIVESTITURE.  SUCH ARGUMENTATIVE POWER DOES NOT
PRECLUDE RESTRAINTS, BY INJUNCTIVE RELIEF, THAT RENDER IT "IMPOTENT,"
TO USE THE LANGUAGE OF THE SCHINE CASE.  NOR IS THERE IN THE RECORD
BEFORE US ANY BASIS IN FACT FOR THE FEARS THAT HAVE EVOKED THE
APPLICATION OF THIS PRINCIPLE IN PREVIOUS DIVESTITURE CASES.  THERE IS
NO FINDING IN THIS CASE, AS THERE WERE IN CRESCENT AND SCHINE, OF A
DELIBERATE CONSPIRACY AIMED AT THE DESTRUCTION OF COMPETITION.  WE
CANNOT POINT IN THIS CASE, AS WE HAVE ON OCCASION IN THE PAST, TO ANY
BLATANTLY ANTICOMPETITIVE SCHEME.  SEE, E.G., UNITED STATES V. READING
CO., 253 U.S. 26, 59.  INSTEAD WE HAVE ONLY THE FINDING THAT "THERE IS
A REASONABLE PROBABILITY THAT THE ACQUISITION IS LIKELY TO RESULT IN
THE CONDEMNED RESTRAINTS," 353 U.S., AT 607, I.E., TO RESTRAIN
COMMERCE.  MOREOVER, THE COURT EXPLICITLY RULED EXECUTIVE MISCONDUCT
OUT OF THE CASE - "WITHOUT ANY DESIGN TO OVERREACH ANYONE, INCLUDING DU
PONT'S COMPETITORS."  353 U.S., AT 607. 

EVEN IN THE CRESCENT CASE, THE COURT VOICED ITS CONCERN FOR THE
FUTURE ONLY BY WAY OF SUPPORT FOR ITS CONCLUSION THAT THE DISTRICT
COURT'S SEVERANCE OF THE DEFENDANTS COULD NOT BE REVERSED FOR ABUSE OF
DISCRETION.  323 U.S, AT 190.  THE COURT SUSTAINED, RATHER THAN
OVERTURNED, THE LOWER COURT'S JUDGMENT.  TO INFER THAT THE COURT WOULD
HAVE FOUND AN ABUSE OF DISCRETION HAD THE DISTRICT COURT IN CRESCENT
LIMITED ITSELF TO A DECREE OF INJUNCTIVE RELIEF IS AN UNWARRANTED
ASSUMPTION.  BUT THE GOVERNMENT IN EFFECT DRAWS SUCH AN INFERENCE FOR
THE PURPOSE OF THIS CASE, EVEN THOUGH THE FACTS OF DU PONT'S VIOLATION
DO NOT FAINTLY RESEMBLE THE OFFENSE OF THE MOVIE EXHIBITORS IN
CRESCENT.  WHEN THE POWERFUL INTERESTS OF JAMES J. HILL AND J. PIERPONT
MORGAN COALESCE TO PLACE IN ONE CONTROLLING PARENT THE STOCK OF THE
GREAT NORTHERN AND NORTHERN PACIFIC RAILWAYS, NORTHERN SECURITIES CO.
V. UNITED STATES, 193 U.S. 197; WHEN THE STANDARD OIL CO. OR THE
AMERICAN TOBACCO CO. OBTAIN MONOPOLY POSITIONS IN THEIR VAST INDUSTRIAL
EMPIRES, SEE STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1, AND UNITED
STATES V. AMERICAN TOBACCO CO., 221 U.S. 106; WHEN THE RAIL CARRIERS
CONTROLLING THE MEANS OF TRANSPORTATION OF ANTHRACITE COAL COMBINE TO
DESTROY A POTENTIAL COMPETITOR, UNITED STATES V. READING CO., 226 U.S.
324, THE FACTS DEMAND THE MAJOR SURGERY OF DIVESTITURE - DESTRUCTION OF
THE OFFENDING COMBINATIONS.  BUT TO HOLD THAT THE TREATMENT OF THESE
CONSCIOUS CONSPIRACIES TO RESTRAIN TRADE AND TO ACHIEVE MONOPOLY POWER
IS COMPELLING PRECEDENT FOR DETERMINING THE RELIEF NECESSARY AND
APPROPRIATE TO REMEDY THE ONLY WRONG JUDICIALLY FOUND BY THIS COURT
UNDER SEC. 7, IS TO TREAT SITUATIONS FLAGRANTLY DIFFERENT AS THOUGH
THEY WERE THE SAME.  SURELY THERE IS MERIT TO THE NOTION OF SHAPING THE
PUNISHMENT TO FIT THE CRIME, EVEN BEYOND THE PRECINCTS OF THE MIKADO'S
PALACE. 

THE GROUNDS THUS CANVASSED FURNISH THE RELEVANT CONSIDERATIONS FOR
THIS COURT'S REVIEW OF THE DISTRICT COURT'S DECREE.  THE OBVIOUS MUST
BE RESTATED.  WE DO NOT SIT TO DRAFT ANTITRUST DECREES DE NOVO.  THIS
IS A COURT OF APPEAL, NOT A TRIAL COURT.  WE DO NOT SEE THE WITNESSES,
SIFT THE EVIDENCE IN DETAIL, OR APPRAISE THE COURSE OF EXTENDED
ARGUMENT, SESSION AFTER SESSION, DAY AFTER DAY.  (A REVIEW OF PART III
OF THIS OPINION ABUNDANTLY SHOWS THE EXTENT TO WHICH THE DISTRICT
COURT'S APPRAISAL OF THE CREDIBILITY OF WITNESSES, ANALYSIS OF EXPERT
TESTIMONY, AND RECONCILIATION OF THE CLAIMS OF COUNSEL ENTERED INTO THE
PAINSTAKING PROCESS THAT LED TO THE COURT'S VIEWS ON COMPLICATED ISSUES
AND ULTIMATELY TO THE FORMULATION OF ITS DECREE.)  IN SHORT, THIS COURT
DOES NOT PARTAKE OF THE PROCEDURE AND IS NOT CHARGED WITH THE
RESPONSIBILITY DEMANDED OF THE COURT ENTRUSTED WITH THE TASK OF
DEVISING THE DETAILS OF A DECREE APPROPRIATE FOR THE GOVERNANCE OF A
VASTLY COMPLICATED SITUATION ARISING OUT OF UNIQUE CIRCUMSTANCES.  BY
ITS NATURE, THIS COURT, AS AN APPELLATE TRIBUNAL, LACKS THE MEANS - THE
PROCEDURAL FACILITIES - TO EVOLVE A DECREE IN A CASE LIKE THIS.  FOR
THESE REASONS THIS COURT SENT THIS CASE BACK TO THE DISTRICT COURT,
QUOTING IN PART (353 U.S., AT 608), WITHOUT SPECIFIC LIMITATION, THE
COMPREHENSIVELY GENERAL GUIDELINES OF AN EARLIER CASE:    "THE FRAMING
OF DECREES SHOULD TAKE PLACE IN THE DISTRICT RATHER THAN IN APPELLATE
COURTS.  THEY ARE INVESTED WITH LARGE DISCRETION TO MODEL THEIR
JUDGMENTS TO FIT THE EXIGENCIES OF THE PARTICULAR CASE."  INTERNATIONAL
SALT CO. V. UNITED STATES, 332 U.S. 392, 400-40L.  (FN16) 

TO TELL A TRIAL JUDGE THAT HE HAS DISCRETION IN CERTAIN MATTERS IS TO
TELL HIM THAT THERE IS A RANGE OF CHOICES AVAILABLE TO HIM.  IT IS TO
TELL HIM THAT THE RESPONSIBILITY IS HIS, AND THAT HE WILL NOT BE
REVERSED EXCEPT FOR STRAYING OUTSIDE THE PERMISSIBLE RANGE OF CHOICE,
I.E., FOR ABUSE OF DISCRETION.  SEE, E.G., UNITED STATES V. CRESCENT
AMUSEMENT CO., 323 U.S. 173, 189; TIMKEN ROLLER BEARING CO. V. UNITED
STATES, 341 U.S. 593, 600-601.  IN SUSTAINING THE JUDGMENT IN LORAIN
JOURNAL CO. V. UNITED STATES, 342 U.S. 143, 156, THE COURT STATED ITS
STANDARD FOR UPHOLDING THE TRIAL COURT'S DECREE AS SIMPLY THAT "THE
DECREE IS REASONABLY CONSISTENT WITH THE REQUIREMENTS OF THE CASE AND
REMAINS WITHIN THE CONTROL OF THE COURT BELOW."  CERTAINLY WE OUGHT NOT
TO REVERSE THE CAREFULLY WROUGHT RESULTS OF A CONSCIENTIOUS TRIAL JUDGE
WITHOUT A SHOWING AMOUNTING ALMOST TO A DEMONSTRATION THAT HE EXCEEDED
THE FAIR LIMITS OF JUDICIAL CHOICE WHICH THIS COURT EXPLICITLY REPOSED
IN HIM.  (FN17) 

WHEN A DISTRICT JUDGE HAS FAILED TO ACCORD PARTIES AN ADEQUATE
HEARING OR HAS BEEN OTHERWISE WANTING IN THE ADMINISTRATION OF FAIR
PROCEDURE, THERE IS THE BEST OF REASONS FOR THIS COURT TO SECURE FOR
THEM THE FULL MEASURE OF JUDICIAL CONSIDERATION WHICH THEY ARE OWED BUT
FAILED TO RECEIVE.  BUT WHEN, AS IN THIS CASE, THE COMPREHENSIVENESS OF
THE HEARING, THE FULL CONSIDERATION OF THE ISSUES, BOTH THROUGH
EVIDENCE AND ARGUMENT, THE EVIDENT DILIGENCE AND SEARCHING COMPETENCE
OF THE JUDGE - REFLECTED THROUGHOUT THE LONG HEARING - AND HIS CARE IN
EXPOUNDING THE REASONS FOR HIS JUDGMENT DEMONSTRATE A DEEP AWARENESS OF
THE DUTY WITH WHICH THIS COURT CHARGED HIM WITHOUT ANY RESTRICTIONS ON
HIS TASK EXCEPT THAT HE WAS ENTRUSTED "WITH LARGE DISCRETION," REVERSAL
OF THE LOWER COURT'S RESULT CAN BE JUSTIFIED ONLY BY A SHOWING OF
PATENT MISCONCEPTION OF GOVERNING LAW OR WANT OF CONSCIENTIOUS REGARD
FOR "THE EXIGENCIES OF THE PARTICULAR CASE."  WHEN JUDGED BY THE
RELEVANT DECISIONS AND PRONOUNCEMENTS OF THIS COURT, SUCH LEGAL DEFECTS
OR INADEQUACIES ARE IMPRESSIVELY DISPROVED BY THIS RECORD. 

IT MAY BE SUGGESTED THAT HOWEVER FAITHFULLY THE TRIAL COURT ABIDED BY
THE OTHER TEACHINGS OF THIS COURT, IT FORGOT ONE, NAMELY, "THAT RELIEF,
TO BE EFFECTIVE, MUST GO BEYOND THE NARROW LIMITS OF THE PROVEN
VIOLATION."  UNITED STATES V. UNITED STATES GYPSUM CO., 340 U.S. 76,
90.  SEE INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 400. 
THIS PRINCIPLE IS IMPORTANT BUT IT CARRIES NO WARRANT FOR REVERSAL IN
THIS CASE.  IT HAS ALREADY BEEN POINTED OUT THAT THE DISTRICT COURT
SPECIFICALLY APPLIED THIS PRINCIPLE IN SIGNIFICANT PROVISIONS OF ITS
DECREE.  THIS COURT FOUND A DANGER OF RESTRAINT OF TRADE ONLY IN THE
MARKET FOR AUTOMOBILE FABRICS AND FINISHES.  THE DISTRICT COURT
NEVERTHELESS EXTENDED THE INJUNCTIVE PROVISIONS OF ITS DECREE TO ALL
TRADE RELATIONS BETWEEN DU PONT AND GENERAL MOTORS, REGARDLESS OF THE
PRODUCTS INVOLVED.  THIS COURT PROCEEDED ON THE ASSUMPTION THAT THE
OFFICERS AND DIRECTORS OF THE COMPANIES HAD ACTED HONORABLY AND IN THE
BEST INTERESTS OF THEIR RESPECTIVE CORPORATIONS.  YET THE DISTRICT
COURT, RESPONSIVE TO THE GOVERNMENT'S URGING, THOUGH WITHOUT
SUBSTANTIAL EVIDENCE IN THE RECORD, CHOSE TO STERILIZE THE VOTING POWER
NOT ONLY OF DU PONT'S OFFICERS AND DIRECTORS, BUT ALSO OF A MAJOR BLOCK
OF ITS LARGE SHAREHOLDERS, THE SHAREHOLDERS OF CHRISTIANA AND
DELAWARE.  IN FACT, THE DISTRICT COURT EXCEEDED THE GOVERNMENT'S
REQUESTS IN SEVERAL SUBSTANTIAL RESPECTS.  THIS IS TRUE WITH RESPECT TO
THE INJUNCTION AGAINST COOPERATIVE AND PREFERENTIAL BUSINESS PRACTICES
BETWEEN DU PONT AND GENERAL MOTORS, (FN18) THE PROHIBITION AGAINST
INTERLOCKING CORPORATE PERSONNEL, (FN19) AND THE DETAIL OF THE
RETENTION OF JURISDICTION AND REOPENING CLAUSES.  (FN20) 

MOREOVER, THE PRINCIPLE OF EXTENDING RELIEF BEYOND THE NARROW LIMITS
OF THE VIOLATION HAS AN IMPORTANT LIMITING COROLLARY.  THE TRIAL COURT
IS NOT AUTHORIZED TO ORDER RELIEF WHICH IT IS WITHOUT FINDINGS TO
SUPPORT.  "A FULL EXPLORATION OF FACTS IS USUALLY NECESSARY IN ORDER
PROPERLY TO DRAW SUCH A DECREE."  ASSOCIATED PRESS V. UNITED STATES,
326 U.S. 1, 22.  THIS COURT HAS UNHESITATINGLY REVERSED REMEDIAL ACTION
BY THE LOWER COURTS, BOTH FOR AND AGAINST THE GOVERNMENT, WHEN WANTING
IN SUPPORTING FINDINGS.  SEE HARTFORD-EMPIRE CO. V. UNITED STATES, 323
U.S. 386, 418; SCHINE CHAIN THEATRES, INC., V. UNITED STATES, 334 U.S.
110; UNITED STATES V. PARAMOUNT PICTURES, 334 U.S. 131, 170-174; HUGHES
V. UNITED STATES, 342 U.S. 353, 357-358.  BUT IF FINDINGS ON QUESTIONS
OF FACT, OR MIXED QUESTIONS OF LAW AND FACT, ARE ESSENTIAL TO THE
FORMULATION OF A DECREE, IT BECOMES VIRTUALLY IMPOSSIBLE TO DEVELOP A
BASIS FOR A DIVESTITURE ORDER AT THIS STAGE ON THIS RECORD.  THE
DISTRICT COURT FOUND THAT ONCE ALL OF DU PONT'S TIES TO GENERAL MOTORS,
SAVE ITS STOCK INTEREST, WERE SEVERED THE RECORD IS BARREN OF
JUSTIFICATION FOR AN INFERENCE OF REASONABLE PROBABILITY OF RESTRAINT
OF TRADE.  CONVERSELY, IT FOUND THAT THE TAX AND MARKET CONSEQUENCES OF
DIVESTITURE WOULD BE SO ONEROUS THAT, IN THE ABSENCE OF ANY SERIOUS
ANTICOMPETITIVE DANGER, IT WOULD HAVE CONSTITUTED AN ABUSE OF
DISCRETION TO ENTER SUCH A DECREE.  THESE CONCLUSIONS WERE BASED IN
SIGNIFICANT MEASURE ON THE FIRSTHAND FACTUAL ANALYSIS THAT ONLY A TRIAL
JUDGE IS IN A POSITION TO MAKE.  FOR THE COURT TO REQUIRE DIVESTITURE,
THEREBY OVERTURNING A TRIAL COURT JUDGMENT FOUNDED ON AN APPRAISAL OF
VOLUMINOUS CONFLICTING EVIDENCE AND OPINION, IS IN EFFECT TO DISPLACE
THE TRIAL COURT'S FUNCTION AS FACT-FINDER. 

THE GOVERNMENT SUGGESTS THAT POSSIBLY, IN "EXCEPTIONAL" CASES, SOME
REMEDY OTHER THAN DIVESTITURE MAY SUFFICE, BUT THAT THIS IS NOT THE
"EXCEPTIONAL" CASE.  IF THIS IS NOT AN "EXCEPTIONAL" CASE, WHAT WOULD
BE?  IS IT REALLY TENABLE TO REGARD THIS AN ORDINARY, A CONVENTIONAL, A
RUN-OF-THE-MILL CASE? 

DU PONT BEGAN TO ACQUIRE GENERAL MOTORS STOCK WHILE WORLD WAR I WAS
STILL IN PROGRESS.  IT OWNED THAT STOCK OPENLY FOR THREE DECADES BEFORE
THIS SUIT WAS INSTITUTED TO CHALLENGE THE VALIDITY OF THE ACQUISITION. 
DURING THAT PERIOD THE NUMBER OF GENERAL MOTORS AND DU PONT
STOCKHOLDERS EXPANDED FROM A FEW THOUSAND TO MANY HUNDREDS OF
THOUSANDS.  THE VALUE OF THE GENERAL MOTORS STOCK GREATLY INCREASED. 
THE TAX LAWS WERE SUBSTANTIALLY CHANGED.  THE DISTRICT COURT HAS
FASHIONED A CLOSELY KNIT NETWORK OF PROVISIONS TO PREVENT PREFERENTIAL
DEALINGS BETWEEN GENERAL MOTORS AND DU PONT.  SO CERTAIN WAS IT THAT
DIVESTITURE WOULD, ON THE BASIS OF ITS FINDINGS, WORK GREAT AND
UNJUSTIFIABLE LOSS ON WHOLLY INNOCENT INVESTORS, THAT IT CONSIDERED A
DIVESTITURE ORDER BEYOND ITS DISCRETIONARY POWER.  THE PRECEDENTS OF
THIS COURT TO WHICH THE DISTRICT COURT COULD LOOK FOR GUIDANCE IN THE
DISCHARGE OF ITS DUTY PERMITTED, AT THE LEAST, THE INFERENCES (1) THAT
THE FRAMING OF THE DECREE LAY WITHIN ITS DISCRETION, (2) THAT WITHIN
THE SCOPE OF THAT DISCRETION IT WAS FREE TO CONSIDER ALL RELEVANT
CONSEQUENCES, BOTH PUBLIC AND PRIVATE, OF THE PLANS PROPOSED, (3) THAT
IT WAS UNDER NO COMPULSION TO ORDER DIVESTITURE, (4) THAT THERE WAS
AMPLE REASON TO AVOID A HARSH REMEDY IF IT WERE TO CONCLUDE THAT A LESS
SEVERE ONE WOULD BE EFFECTIVE, (5) THAT BOTH THE FACTS AND THE
FORMULATED REASONING OF PRIOR DIVESTITURE CASES MADE THEM
DISTINGUISHABLE FROM THE DU PONT PROBLEM, AND (6) THAT UNLESS THE
DISTRICT COURT ABUSED ITS DISCRETION BY DISREGARDING THIS COURT'S
GUIDES FOR ITS DISCRETION, ITS JUDGMENT WOULD STAND ON REVIEW.  IN THE
FACE OF ALL THIS, IT IS INDEED "EXCEPTIONAL" FOR THIS COURT TO UPSET
THE LOWER COURT'S JUDGMENT THAT ITS DECREE MET THE NEEDS ESTABLISHED IN
THE PROCEEDING BEFORE IT. 

THE ESSENTIAL APPEAL OF THE GOVERNMENT'S POSITION LIES IN ITS
EXCITATION OF FEAR OF ANY INTERCORPORATE RELATIONSHIP BETWEEN TWO SUCH
COLOSSI AS DU PONT AND GENERAL MOTORS.  IT IS EASY TO CALM THIS FEAR BY
A REQUIREMENT OF DIVESTITURE.  INSOFAR AS THE COURT YIELDS TO THAT
FEAR, IT IS STRANGE, INDEED, THAT THIS WAS NOT OBVIOUS TO THE COURT
WHEN IT FOUND THE ILLEGALITY FOR WHICH IT DIRECTED THE DISTRICT COURT
TO EVOLVE A CORRECTIVE REMEDY.  NOT A SINGLE CONSIDERATION NOW ADVANCED
BY THE COURT FOR DIRECTING DIVESTITURE WAS NOT AVAILABLE WHEN THE CASE
WAS ORIGINALLY HERE.  FOR NOT ONE OF THESE CONSIDERATIONS IS BASED ON
EVIDENCE ELICITED AT THE HEARING BEFORE THE DISTRICT COURT, DIRECTED BY
THIS COURT, FOR DETERMINING THE RELIEF.  SUCH A LIMITATION ON THE
DISCRETIONARY DECREE-FASHIONING POWER, UPON FULL HEARING IN THE
DISTRICT COURT, CERTAINLY COULD NOT HAVE BEEN IN THIS COURT'S MIND WHEN
IT REMITTED THAT FUNCTION TO THE DISTRICT COURT, OTHERWISE IT WOULD
HAVE SPOKEN ITS MIND AND NOT LEFT IT ALL TO THE "LARGE DISCRETION" OF
THE COURT.  IN ANY EVENT IT REQUIRES PROPHETIC CONFIDENCE TO CONCLUDE
THAT THAT DECREE IS SO OBVIOUSLY INADEQUATE AS TO REQUIRE REVERSAL
BEFORE IT CAN BE TRIED IN PRACTICE.  NEITHER THE RECORD WHEN THE CASE
WAS FIRST HERE NOR THE FACTS ADDUCED AT THE HEARING ON MOLDING THE
DECREE GIVE WARRANT FOR THIS COURT TO SET ASIDE THE TRIAL COURT'S
FINDING ON THE IMPROBABILITY OF FUTURE RESTRAINT OF TRADE IN VIEW OF
THE SAFEGUARDING TERMS OF THE DECREE.  IF THE COURT WERE TO ALLOW THE
DISTRICT COURT'S MATURELY CONSIDERED SCHEME FOR PROTECTING THE DOMINANT
PUBLIC INTEREST WITH LESS THAN "SURGICAL RUTHLESSNESS" TO PROCEED, TIME
MIGHT SHOW THAT THE RELIEF GRANTED BY THE DISTRICT COURT WAS WELL
BASED, AND THAT THIS COURT'S WILLINGNESS TO GIVE IT A TRY PROPERLY
AVERTED REASONABLY FOUNDED FEAR OF SERIOUS ECONOMIC DISLOCATION. 

REVERSAL BY WAY OF COMMANDING DIVESTITURE IS A "JUDGMENT FROM
SPECULATION," CARRYING WITH IT IRREVERSIBLE CONSEQUENCES, WHEREAS THE
DISTRICT COURT'S DECREE LEAVES THE DOOR OPEN FOR "JUDGMENT FROM
EXPERIENCE," TANNER V. LITTLE, 240 U.S. 369, 386, UNDER ITS CLAUSES
RETAINING JURISDICTION TO MODIFY THE JUDGMENT IN THE LIGHT OF CHANGED
CIRCUMSTANCES.  RESORT TO SUCH SAFETY VALVE CLAUSES IS AN ESTABLISHED
PRACTICE IN REVIEW OF ANTITRUST REMEDIES, FOR THEY ALLOW THE COURTS TO
ACT ON THE BASIS OF INFORMED HINDSIGHT RATHER THAN TREACHEROUS
CONJECTURE.  IN INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392,
401, THE COURT ENUNCIATED THIS PRINCIPLE IN LANGUAGE PERTINENT HERE: 

"THE DISTRICT COURT HAS RETAINED JURISDICTION, BY THE TERMS OF ITS
JUDGMENT, FOR THE PURPOSE OF 'ENABLING ANY OF THE PARTIES  ..  TOO
APPLY TO THE COURT AT ANY TIME FOR SUCH FURTHER ORDERS AND DIRECTIONS
AS MAY BE NECESSARY OR APPROPRIATE FOR THE CONSTRUCTION OR CARRYING OUT
OF THIS JUDGMENT' AND 'FOR THE AMENDMENT, MODIFICATIONS OR TERMINATION
OF ANY OF THE PROVISIONS  ..  .''  WE THINK IT WOULD NOT BE GOOD
JUDICIAL ADMINISTRATION TO STRIKE PARAGRAPH VI FROM THE JUDGMENT TO
MEET A HYPOTHETICAL SITUATION WHEN THE DISTRICT COURT HAS PURPOSELY
LEFT THE WAY OPEN TO REMEDY ANY SUCH SITUATIONS IF AND WHEN THE NEED
ARISES.  THE FACTUAL BASIS OF THE CLAIM FOR MODIFICATION SHOULD APPEAR
IN EVIDENTIARY FORM BEFORE THE DISTRICT COURT RATHER THAN IN THE
ARGUMENTATIVE FORM IN WHICH IT IS BEFORE US  ..  ."" 

THE WISDOM OF THIS POLICY IS REFLECTED IN MANY OF OUR DECISIONS. 
(FN21)  WHY SHOULD IT NOT GUIDE THE COURT'S DECISION IN THIS CASE?  THE
GOVERNMENT'S PRESENTATION BOILS DOWN TO AN UNSUBSTANTIATED ASSERTION
THAT ANY TIE BETWEEN DU PONT AND GENERAL MOTORS GRAVELY JEOPARDIZES THE
PLAY OF COMPETITIVE FORCES.  WHEN WE ARE ASKED TO ASSUME THIS, WE ARE
ASKED TO ASSUME THAT EVEN AFTER A DECREE FASHIONED WITH THE
CIRCUMSPECTION WITH WHICH THIS WAS, A "REASONABLE PROBABILITY" EXISTS
THAT THE DEFENDANTS WILL, IN A WHOLLY UNDEFINED WAY, COMBINE TO VIOLATE
THE ANTITRUST LAWS.  WE ARE ASKED, IN ESSENCE, TO ENTER ALICE'S
WONDERLAND WHERE PROOF IS UNNECESSARY AND THE GOVERNING RULE OF LAW IS
"SENTENCE FIRST, VERDICT AFTER." 

THE DISTRICT COURT HERE CONCLUDED THAT THE RELIEF IT DEVISED WOULD
DISPEL ALL POTENTIAL RESTRAINTS UPON FREE COMPETITION AS EFFECTIVELY AS
WOULD DIVESTITURE, WHILE DIVESTITURE WAS LIKELY TO CAUSE SERIOUS
ECONOMIC DISTURBANCE UNWARRANTED BY A NEED FOR THAT REMEDY.  NEITHER IN
ITS PROCEDURES NOR IN ITS CONSIDERATION OF THE DATA PRESENTED TO IT DID
THE COURT FAIL TO DISCHARGE THE OBLIGATIONS PLACED UPON IT BY THE
DECISIONS OF THIS COURT AND BY THE ONLY INSTRUCTION - TO EXERCISE
"LARGE DISCRETION" - GIVEN IT BY THE COURT IN THIS CASE.  IN NO WAY DID
THE DISTRICT COURT ABUSE THE DISCRETION ENTRUSTED TO IT.  ITS JUDGMENT
SHOULD THEREFORE BE AFFIRMED. 

FN1  38 STAT. 731, 15 U.S.C. (1946 ED.)  SEC.  18.  THE SUIT WAS
BROUGHT PRIOR TO THE ENACTMENT IN 1950 OF AMENDMENTS TO THE ACT WHICH,
BY THEIR TERMS, ARE INAPPLICABLE TO PREVIOUS ACQUISITIONS.  64 STAT.
1125, 15 U.S.C. SEC. 18. 

FN2  26 STAT. 209, AS AMENDED, 50 STAT. 693, 15 U.S.C. SECS. 1, 2. 

FN3  SEE 353 U.S., AT 588, N. 5. 

FN4  FOR A DISCUSSION OF AMICUS DALLSTREAM'S RECOMMENDATIONS, SEE THE
OPINION OF THE DISTRICT COURT, 177 F. SUPP., AT 9-10.    FN5
TRANSCRIPT OF PROCEEDINGS, MARCH 31, 1959. 

FN6  A SUMMARY OF THE DETAILED PROVISIONS OF THE DECREE CARRYING OUT
THE DIRECTION AND PURPOSES OF THE COURT'S OPINION FOLLOWS. 

DU PONT, CHRISTIANA, AND DELAWARE WERE ENJOINED FROM ACQUIRING
ADDITIONAL GENERAL MOTORS STOCK EXCEPT AS STOCK OR RIGHTS MIGHT BE
DISTRIBUTED TO THEM AS STOCKHOLDERS BY GENERAL MOTORS. 

DU PONT, CHRISTIANA, AND DELAWARE, ON THE ONE HAND, AND GENERAL
MOTORS, ON THE OTHER, WERE PROHIBITED TO HAVE COMMON OFFICERS,
DIRECTORS, OR EMPLOYEES.  THE FORMER THREE WERE ALSO RESTRAINED FROM
NOMINATING ANY PERSON TO BE AN OFFICER OR DIRECTOR OF GENERAL MOTORS. 

DU PONT AND GENERAL MOTORS WERE COMPELLED TO TERMINATE, FOR AS LONG
AS DU PONT, CHRISTIANA, OR DELAWARE OWN ANY GENERAL MOTORS STOCK, ANY
AGREEMENT BETWEEN THEM WHICH (1) REQUIRES GENERAL MOTORS TO PURCHASE
FROM DU PONT A SPECIFIED PERCENTAGE OF ITS REQUIREMENTS OF ANY PRODUCT
(WITH CERTAIN TIME PROVISOS), OR (2) GRANTS TO EITHER CONCERN EXCLUSIVE
PATENT RIGHTS, OR GRANTS TO DU PONT PREFERENTIAL RIGHTS TO MAKE OR SELL
ANY CHEMICAL DISCOVERY OF GENERAL MOTORS. 

DU PONT, CHRISTIANA, AND DELAWARE WERE RESTRAINED, FOR THE SAME
PERIOD, FROM ENTERING INTO ANY JOINT BUSINESS VENTURE WITH GENERAL
MOTORS AND FROM KNOWINGLY HOLDING STOCK IN ANY BUSINESS ENTERPRISE IN
WHICH GENERAL MOTORS HOLDS STOCK.  THE SAME RESTRICTIONS WERE APPLIED
TO GENERAL MOTORS. 

DU PONT WAS ENJOINED, AGAIN FOR THE STOCK-HOLDING PERIOD, FROM
DEALING WITH GENERAL MOTORS WITH RESPECT TO DU PONT PRODUCTS ON TERMS
MORE FAVORABLE THAN THOSE ON WHICH IT IS WILLING TO DEAL WITH GENERAL
MOTORS' COMPETITORS.  THE SAME RESTRICTION WAS PLACED UPON GENERAL
MOTORS IN ITS DEALINGS WITH DU PONT. 

DU PONT, CHRISTIANA, AND DELAWARE, AND THEIR DIRECTORS AND OFFICERS,
AND THE MEMBERS OF THE FAMILIES OF THEIR DIRECTORS AND OFFICERS WHO
RESIDE IN THE SAME HOUSEHOLD WITH THEM, WERE ENJOINED FROM EXERCISING
THEIR VOTING RIGHTS IN GENERAL MOTORS STOCK OWNED BY THEM OR ALLOCABLE
TO THEM UNDER THE DECREE, AND FROM ATTEMPTING TO INFLUENCE ANYONE
VOTING GENERAL MOTORS STOCK. 

THE VOTE ON THE GENERAL MOTORS SHARES OWNED BY DU PONT WAS ORDERED
"PASSED THROUGH" TO THE STOCKHOLDERS OF DU PONT (SUBJECT TO THE
PROHIBITIONS OF THE PRECEDING PARAGRAPH), AND THE NOTIFICATION AND
PROXY MACHINERY NECESSARY TO EFFECTUATE THIS PROVISION WAS OUTLINED. 
PROVISION WAS MADE FOR THE APPOINTMENT OF A MONITOR OF THESE VOTING
PROCEDURES. 

A PROCEDURE WAS ESTABLISHED WHEREBY DU PONT AND CHRISTIANA MIGHT SELL
OR OTHERWISE DISPOSE OF THEIR GENERAL MOTORS STOCK. 

TWO SEPARATE PROVISIONS PRESERVED THE RIGHT OF ANY PARTY TO APPLY TO
THE COURT FOR MODIFICATION OF THE DECREE IN THE EVENT OF A CHANGE OF
CIRCUMSTANCES (SUCH AS THE ADVENT OF LEGISLATIVE TAX RELIEF) AND FOR
FURTHER ORDERS NECESSARY FOR CARRYING OUT THE JUDGMENT. 

DU PONT, CHRISTIANA, AND DELAWARE WERE DIRECTED TO OBTAIN FROM THEIR
OFFICERS AND DIRECTORS, AND THEIR FAMILIES, WRITTEN CONSENTS TO BE
BOUND BY THE VOTING RESTRICTIONS OF THE JUDGMENT. 

FOR THE PURPOSE OF SECURING COMPLIANCE WITH THE JUDGMENT, THE
DEPARTMENT OF JUSTICE WAS AUTHORIZED TO CONDUCT REASONABLE INSPECTIONS
OF THE RECORDS AND INTERVIEWS WITH THE EMPLOYEES OF DU PONT,
CHRISTIANA, AND DELAWARE AND TO APPLY TO THE COURT FOR SIMILAR
PRIVILEGES AS TO GENERAL MOTORS UPON A SHOWING OF GOOD CAUSE. 

FN7  SEE, E.G., UNITED STATES V. CRESCENT AMUSEMENT CO., 323 U.S.
173, 185; INTERNATIONAL SALT CO. V. UNITED STATES, 332 U.S. 392, 400
401; BESSER MFG. CO. V. UNITED STATES, 343 U.S. 444, 449-450;
INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242, 253. 

FN8  IN ADDITION, SEE, FOR EXAMPLE, MCCLINTOCK, EQUITY (2D ED. 1948),
SEC. 30: 

"A COURT OF EQUITY MAY FFRAME ITS DECREE SO AS TO PROTECT TO THE
GREATEST EXTENT POSSIBLE THE CONFLICTING INTERESTS OF THE PARTIES; TO
ACCOMPLISH THIS IT MAY REQUIRE THE PERFORMANCE OF CONDITIONS, MAY
EXPERIMENT TO DETERMINE HOW BEST TO ACCOMPLISH ITS PURPOSE, AND MAY USE
EITHER THE NEGATIVE OR THE POSITIVE FORM OF DECREE." 

POMEROY, EQUITY JURISPRUDENCE (5TH ED. 1941), SEC. 109: 

"EQUITABLE REMEDIES  ..  ARRE DISTINGUISHED BY THEIR FLEXIBILITY,
THEIR UNLIMITED VARIETY, THEIR ADAPTABILITY TO CIRCUMSTANCES, AND THE
NATURAL RULES WHICH GOVERN THEIR USE.  THERE IS IN FACT NO LIMIT TO
THEIR VARIETY AND APPLICATION; THE COURT OF EQUITY HAS THE POWER OF
DEVISING ITS REMEDY AND SHAPING IT SO AS TO FIT THE CHANGING
CIRCUMSTANCES OF EVERY CASE AND THE COMPLEX RELATIONS OF ALL THE
PARTIES." 

FN9  SEE ALSO UNITED STATES V. TERMINAL R. ASSN., 224 U.S. 383;
UNITED STATES V. AMERICAN CAN CO., 234 F. 1019; UNITED STATES V. GREAT
LAKES TOWING CO., 208 F. 733, 217 F. 656. 

FN10  THE BICKS STATEMENT ITSELF MAKES REPEATED REFERENCE TO THE
PENDING DU PONT CASE.  SEE 4 ANTITRUST BULLETIN, AT 561, N. 7, 562, N.
8, 567, N. 13.  AND THE COMMITTEE REPORT AND HEARINGS RECUR AGAIN AND
AGAIN TO THE SERIOUS TAX PROBLEM ENGENDERED BY THE CASE.  SEE H.R.
REP. NO. 1128, 86TH CONG., 1ST SESS.; HEARINGS ON H.R. 8126 BEFORE THE
HOUSE COMMITTEE ON WAYS AND MEANS, 86TH CONG., 1ST SESS.; HEARINGS ON
S. 200 BEFORE THE SENATE COMMITTEE ON FINANCE, 86TH CONG., 1ST SESS. 

FN11  AND SEE UNITED STATES V. UNITED SHOE MACHINERY CORP., 110 F.
SUPP. 295, 348. 

FN12  FOR A SIMILAR STATEMENT SEE UNITED STATES V. MINNESOTA MINING &
MFG. CO., 96 F. SUPP.  356, 357. 

"IN GENERAL THE OBJECT OF THE REMEDIES UNDER THE ANTI-TRUST LAWS IS
TO PREVENT THE CONTINUANCE OF WRONGFUL CONDUCT, AND TO DEPRIVE THE
WRONGDOERS OF THE FRUITS OF THEIR UNLAWFUL CONDUCT, AND TO PREVENT THE
CREATION ANEW OF RESTRAINT FORBIDDEN BY LAW  ..  ."" 

FN13  IN THE CRESCENT CASE, 323 U.S., AT 189, THE COURT PLACED IN
THIS CATEGORY NORTHERN SECURITIES CO. V. UNITED STATES, 193 U.S. 197;
STANDARD OIL CO. V. UNITED STATES, 221 U.S. 1; UNITED STATES V.
AMERICAN TOBACCO CO., 221 U.S. 106; UNITED STATES V. UNION PACIFIC R.
CO., 226 U.S. 61; UNITED STATES V. READING CO., 253 U.S. 26; UNITED
STATES V. LEHIGH VALLEY R. CO., 254 U.S. 255; AND UNITED STATES V.
SOUTHERN PACIFIC CO., 259 U.S. 214.  OUR SURVEY OF THESE CASES SUSTAINS
THIS CLASSIFICATION.  TO THIS LIST MAY BE ADDED INTERNATIONAL BOXING
CLUB V. UNITED STATES, 358 U.S. 242, IN WHICH THE COURT ACCEPTED THE
DISTRICT COURT'S FINDING THAT "'THE GREAT EVIL'" IN THE CASE "'WAS THE
COMBINATION THAT WIRTZ AND NORRIS CAUSED AND CREATED BY JOINING UP WITH
MADISON SQUARE GARDEN.'"  358 U.S., AT 256. 

FN14  SEE ADDITIONALLY, INTERNATIONAL BOXING CLUB V. UNITED STATES,
358 U.S. 242, 253. 

FN15  THIS CONSTRUCTION OF THE STATUTE HAD LONG BEEN SETTLED.  SEE
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, 280 U.S. 291, 297-298. 

"SECTION 7 OF THE CLAYTON ACT, AS ITS TERMS AND THE NATURE OF THE
REMEDY PRESCRIBED PLAINLY SUGGEST, WAS INTENDED FOR THE PROTECTION OF
THE PUBLIC AGAINST THE EVILS WHICH WERE SUPPOSED TO FLOW FROM THE UNDUE
LESSENING OF COMPETITION  ..  .  

     *         *         *         *         * 

"MERE ACQUISITION BY ONE CORPORATION OF THE STOCK OF A COMPETITOR,
EVEN THOUGH IT RESULT IN SOME LESSENING OF COMPETITION, IS NOT
FORBIDDEN; THE ACT DEALS ONLY WITH SUCH ACQUISITIONS AS PROBABLY WILL
RESULT IN LESSENING COMPETITION TO A SUBSTANTIAL DEGREE  ..  THHAT IS
TO SAY, TO SUCH A DEGREE AS WILL INJURIOUSLY AFFECT THE PUBLIC  ..
."  

FN16  TO THE SAME EFFECT, SEE ASSOCIATED PRESS V. UNITED STATES, 326
U.S. 1; LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S. 143;
INTERNATIONAL BOXING CLUB V. UNITED STATES, 358 U.S. 242; MARYLAND &
VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES, 362 U.S. 458. 

FN17  THE COURT SHOULD NOT ALLOW ITSELF TO BE LED TO A CONTRARY
CONCLUSION BY THE LANGUAGE OF UNITED STATES V. UNITED STATES GYPSUM
CO., 340 U.S. 76, OR HARTFORD-EMPIRE CO. V. UNITED STATES, 324 U.S.
570.  THE GYPSUM CASE SAYS ONLY THAT THE DISTRICT COURT'S CONCLUSIONS
SHOULD NOT BE SUBJECT TO REVERSAL MERELY FOR GROSS ABUSE OF DISCRETION,
AND THAT THIS COURT MUST INTERVENE WHEN THE PROVISIONS OF THE DECREE
ARE "INAPPROPRIATE."  I COULD NOT AGREE MORE, EITHER WITH THESE VIEWS
OR WITH THOSE EXPRESSED IN THE REMARKS THAT FORMED THEIR PREFACE: 

"THE DETERMINATION OF THE SCOPE OF THE DECREE TO ACCOMPLISH ITS
PURPOSE IS PECULIARLY THE RESPONSIBILITY OF THE TRIAL COURT.  ITS
OPPORTUNITY TO KNOW THE RECORD AND TO APPRAISE THE NEED FOR
PROHIBITIONS OR AFFIRMATIVE ACTIONS NORMALLY EXCEEDS THAT OF ANY
REVIEWING COURT."  340 U.S., AT 89. 

IN HARTFORD-EMPIRE THE OPINION OF THE COURT SAYS "IT IS UNTHINKABLE
THAT CONGRESS HAS ENTRUSTED THE ENFORCEMENT OF A STATUTE OF SUCH FAR
REACHING IMPORTANCE TO THE JUDGMENT OF A SINGLE JUDGE, WITHOUT REVIEW
OF THE RELIEF GRANTED OR DENIED BY HIM."  324 U.S., AT 571.  THESE
WORDS, IF GIVEN THE READING THEY SEEM MOST READILY TO BEAR, ARE
CERTAINLY UNOBJECTIONABLE, FOR OUR POWER TO REVIEW THE ANTITRUST RELIEF
DETERMINATIONS OF TRIAL JUDGES IS NOT IN DOUBT.  IF THIS LANGUAGE IS TO
BE READ TO AUTHORIZE DE NOVO CONSIDERATION HERE OF ALL THE DETAILS OF A
LOWER COURT'S DECREE, THEN IT MARKS A REAL ABERRATION IN THIS BRANCH OF
THE LAW.  WHATEVER RESPECT SUCH A VIEW MIGHT ONCE HAVE DESERVED, IT
DESERVES NONE NOW, FOR OUR RECENT DECISIONS HAVE UNIFORMLY ADOPTED THE
PRINCIPLE OF APPELLATE DEFERENCE TO TRIAL COURT DISCRETION.  SEE CASES
CITED IN NOTES 7 AND 16, SUPRA. 

FN18  COMPARE THE GOVERNMENT'S PROPOSED ARTICLE IX WITH SECTION V OF
THE FINAL JUDGMENT. 

FN19  COMPARE THE GOVERNMENT'S PROPOSED ARTICLE X WITH SECTION IV OF
THE FINAL JUDGMENT. 

FN20  COMPARE THE GOVERNMENT'S PROPOSED ARTICLE XIII WITH SECTIONS IX
AND XII OF THE FINAL JUDGMENT. 

FN21  SEE ASSOCIATED PRESS V. UNITED STATES, 326 U.S. 1, 22-23;
TIMKEN ROLLER BEARING CO. V. UNITED STATES, 341 U.S. 593, 604 (OPINION
OF MR. JUSTICE REED); LORAIN JOURNAL CO. V. UNITED STATES, 342 U.S.
143, 157; MARYLAND & VIRGINIA MILK PRODUCERS ASSN. V. UNITED STATES,
362 U.S. 458, 473. 



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