the burger court opinion writing...
TRANSCRIPT
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The Burger Court OpinionWriting Database
United States v. Greater Buffalo Press, Inc402 U.S. 549 (1971)
Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington UniversityForrest Maltzman, George Washington University
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Axprente qourt f tire Anita Abateasitinotrat, (c. 2U kg
May 21, 1971
No. 821 - United States v. Greater Buffalo Press
MEMORANDUM TO THE CONFERENCE:
I concur generally in Justice Douglas' opinion for
the Court and join in Justice White's concurring opinion.
CHAMBERS OF
THE CHIEF JUSTICE
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.CHAMBERS OFTHE CHIEF JUSTICE
.Airortna (flourt of tize 'Anita AbateWaoltizt9tou, urgul
May 25, 1971
No. 821 - United States v. Greater Buffalo Press, Inc. , et al.
MEMORANDUM TO THE CONFERENCE:
My memo of May 21, 1971 may have been confusing. WhatI intended was to join Justice White's opinion. Actually it seemsto me that the two opinions are converging. Perhaps by Thursdaythey will have come together I
Regards,
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Au rant (Court a titellinitett Atatto21traoltington, p. wig
CHAMBERS OF
THE CHIEF JUSTICE May 27, 1971
Re: No. 821 - U. S. v. Greater Buffalo Press
Dear Bill:
I am pleased to join your circulation of
today's date in the above.
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I REPRODUVED FROM THE COLLECTIONS OF THE MANUSCRIPT DMSION, LIBRARY-OF "CONGRESS4
55itirrtutt (4aurt IIf flit trite OtattoAtialrington, Al. CC. 2.0A
CHAMBERS OF
JUSTICE H UGO L. BLACK May 13, 1971
Dear Bill,
Re: No. 821 - United States v. GreaterBuffalo Press, Inc., et al.
I agree -- strongly.
Since rely,
Mr. Justice Douglas
cc: Members of the Conference
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Auvrentt (Conti Df tItt lanitett $5tates
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CHAMBERS OF
JUSTICE HUGO L. BLACK May 27, 1971
Dear Bill,
re: No. 821- U. S. v. Greater Buffalo Press„
I am still with you.
Sincerely,
Hur
Mr. Justice Douglas
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To: T.1-1 ^ 1-' —'s JusticeMr. JuL,t.ice BlackMr. Justice HarlanMr. 3- Istice BrennanMr. j.._1:;tiee !F:tF,wart
Mr. 171-ite eoe„../Mr. Ja3irc 1.1r2:7311
Mr. Blaclueun
1st DRAFT From: D: -2„-la.3, Avi_
SUPREME COURT OF THE UNITED, STATES:_
Recirculated: No. 821.—OCTOBER TERM, 1970
United States, Appellant, On Appeal From the Unitedv. States District Court for
Greater Buffalo Press, the Western District ofInc., et al. New York.
[May —, 1971]
MR. JUSTICE DOUGLAS delivered the opinion of theCourt.
This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,115 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-
1 Section 7 provides:"That no corporation engaged in commerce shall acquire, directly
or indirectly, the whole or any part of the stock or other sharecapital and no corporation subject to the jurisdiction of the FederalTrade Commission shall acquire the whole or any part of the assetsof another corporation engaged also in commerce, where in any lineof commerce in any section of the country, the effect of such acquisi-tion may be substantially to lessen competition, or to tend to createa monopoly."
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REPRODU FROM 'THE COLLECTIONS OF WE MANUSCRIPT DMSIONT IMBRARVOrCON9/ESOT rhea _01-.4 Jlzst ice
Mr. Jut., Lice BlackMr. Justi ceMr. J11..3 ..ce 1, actMr. Ji./ t estMr. JflStj‘-r, 1,1Mr.Mr.
From: .11.1oul.a.'1;,
2nd DRAFT CircuLlt eci:
SUPREME COURT OF THE UNITED STALFESziated
NO. 821.—OCTOBER TERM 1970
United States, Appellant, On Appeal From the Unitedv. States District Court for
Greater Buffalo Press, the Western District ofInc., et al. New York.
[May —, 1971]
MR. JUSTICE DOUGLAS delivered the opinion of theCourt.
This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,/15 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-
1 Section 7 provides in-part:"That no corporation engaged in commerce shall acquire, directly
or indirectly, the whole or any part of the stock or other sharecapital and no corporation subject to the jurisdiction of the FederalTrade Commission shall acquire the whole or any part of the assetsof another corporation engaged also in commerce, where in any lineof commerce in any section of the country, the effect of such acquisi-tion may be substantially to lessen competition, or to tend to createa monopoly."
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leWDUt4EneD FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; CONGRESSi
3rd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 821.-OCTOBER TERM, 1970
United States, Appellant, On Appeal From the Unitedv. States District Court for
Greater Buffalo Press, the Western District ofInc., et al. New York.
[May —, 1971]
MR. JUSTICE DOUGLAS delivered the opinion of theCourt.
This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,'15 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-
1 Section 7 provides in part:"That no corporation engaged in commerce shall acquire, directly
or indirectly, the whole or any part of the stock or other sharecapital and no corporation subject to the jurisdiction of the FederalTrade Commission shall acquire the whole or any part of the assetsof another corporation engaged also in commerce, where in any lineof commerce in any section of the country, the effect of such acquisi-tion may be substantially to lessen competition, or to tend to createa monopoly."
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REPRODUI'ED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF"CONGRES
itprtnit (Cintri of theXixtitett ,%t aft
WEItington, p. Ts.. 2 Cr,54
CHAMBERS OF
JUSTICE WILLIAM 0. DOUGLAS May 22, 1971
Dear Bill:
In No. 821 - United States v. Greater Buffalo Press, I receivedreturns only from you, Hugo, and Thurgood.Today the Chief Justice circulated sayingwhile he concurred generally in my opinion,he joined Byron's separate opinion. Thatmeans, I gather, that there are five whofavor taking no position on the issue ofdivestiture.
Accordingly, I have made somechanges on page 7 of this opinion. If youagree, I thought I would send it down fora new print and recirculate.
Mr. Justice Brennan
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tics Black:raw,4th DRAFT
SUPREME COURT OF THE UNITED STATES
No. 821.-OCTOBER TERM, 1970
United States, Appellant, On Appeal From the Unitedv. States District Court for
Greater Buffalo Press, the Western District ofInc., et al. New York.
[June —, 1971]
MR. JUSTICE DOUGLAS delivered the opinion of theCourt.
This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,'15 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-
1 Section 7 provides in part:"That no corporation engaged in commerce shall acquire, directly
or indirectly, the whole or any part of the stock or other sharecapital and no corporation subject to the jurisdiction of the FederalTrade Commission shall acquire the whole or any part of the assetsof another corporation engaged also in commerce, where in any lineof commerce in any section of the country, the effect of such acquisi-tion may be substantially to lessen competition, or to tend to createa monopoly."
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itl=pRowe FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION,' LIBRARY' OF CONGRES
5th DRAFT
SUPREME COURT OF THE UNITED STATES
No. 821.-OCTOBER TERM, 1970
United States, Appellant,l On Appeal From the Unitedv. States District Court for
Greater Buffalo Press. the Western District ofInc., et al. New York.
[June —, 1971]
MR. JUSTICE DOUGLAS delivered the opinion of theCourt.
This is a civil antitrust case brought by the UnitedStates charging a violation of § 7 of the Clayton Act,'15 U. S. C. § 18, 64 Stat. 1125. The main thrust of thecase involves the acquisition by Greater Buffalo Press,Inc. (Greater Buffalo) of all the stock of InternationalColor Printing Co. (International). The complaint, atthe secondary level, charged that Greater Buffalo, HearstCorp., through its unincorporated division King FeaturesSyndicate (King), Newspaper Enterprise Assoc. Inc.(NEA), and others had conspired to restrain the sale tonewspapers of the printing of comic supplements in vio-lation of § 1 of the Sherman Act, 15 U. S. C. § 1, 26 Stat.209. It also charged that Hearst and NEA were viola-
1 Section 7 provides in part:"That no corporation engaged in commerce shall acquire, directly
or indirectly, the whole or any part of the stock or other sharecapital and no corporation subject to the jurisdiction of the FederalTrade Commission shall acquire the whole or any part of the assetsof another corporation engaged also in commerce, where in any lineof commerce in any section of the country, the effect of such acquisi-tion may be substantially to lessen competition, or to tend to createa monopoly."
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Attsfrington, 20;34
CHAMBERS orJUSTICE WM J. BRENNAN, JR. May 18, 1971
RE: No. 821 - United States v. GreaterBuffalo Press
Dear Bill:
I agree.
Mr. Justice Douglas
cc: The Conference
Sincerely,
W(Jr(W.A. . . a
PT
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CHAMBERS OF
JUSTICE POTTER STEWART
May 20, 1971
No. 821 - U. S. v. Greater Buffalo Press
Dear Byron,
I am glad to join your concurring opinionin this case.
Sincerely yours,
(21k4
Copies to the Conference ct
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CHAMBERS OF
JUSTICE POTTER STEWART
May 27, 1971
No. 821 - U. S. v. Greater Buffalo Press
Dear Bill,
I am glad to join your opinion forthe Court in this case, as recirculated today.
Mr. Justice Douglas
Copies to the Conference
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To: TheMr.Mr.Mr.Mr.
r.
Mr.
Chief JusticeJustice BlackJustice DouglasJustice HarlanJustice BrennanJustice StewartJustice MarshallJustice Blackmun
1st DRAFT
SUPREME COURT OF THE UNITED STATES"' J.
Circulated:__ 6---)- 0 - 7 /No. 821.—OCTOBER TERM, 1970
United States, Appellant,v.
Greater Buffalo Press,Inc., et al.
On Appeal From the UnitedStates District Court forthe Western District of.New York.
[May —, 1971]
MR.. JUSTICE WHITE, concurring.I concur in the judgment remanding the cause for
further proceedings and in so much of the Court's opin-ion as holds that the District Judge erred in his assess-ment of the relevant market and in concluding that themerger was permissible under the failing company doc-trine. However, I would not here reach the questionof the appropriate remedy, for, as stated in United Statesv. DuPont & Co., 366 U. S. 316, 323 (1961), "we assignto the District Courts the responsibility initially tofashion the remedy, but recognize that while we accorddue regard and respect to the conclusion of the DistrictCourt, we have a duty ourselves to be sure that a decreeis fashioned which will effectively redress proved viola-tions of the antitrust laws." While I recognize that theDistrict Judge has here indicated that he feels divestitureinappropriate 15 years after the illegal acquisition, thepassage of time alone is not sufficient to render divesti-ture inappropriate. United States v. DuPont, 353 U. S.586, 590 (1957). The Court repeats this rule today.Beyond that we would perform our duty best by remand-ing the case and leaving the question of remedy to theDistrict Court in the first instance.
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To: The Chief Justi3cMr. Justice BlackMr. Justice DouglasMr. Justice HarlanMr. Justice BrennanMr Justice Stewart
. Justice MarshallMr. Justice Blackmun
2nd DRAFT
SUPREME COURT OF THE UNITED STAIR'S' white ' J.Circulated :_
No. 821.—OCTOBER TERM, 1970Reciroul.9t,,,d • 7/
C
United States, Appellant,v.
Greater Buffalo Press,Inc., et al.
On Appeal From the UnitedStates District Court forthe Western District ofNew York.
[June —, 1971]
MR. JUSTICE WHITE, concurring.
I concur in the judgment remanding the cause forfurther proceedings and in so much of the Court's opin-ion as holds that the District Judge erred in his assess-ment of the relevant market and in concluding that themerger was permissible under the failing company doc-trine. However, I would not here reach the questionof the appropriate remedy, for, as stated in United Statesv. DuPont & Co., 366 U. S. 316, 323 (1961), "we assignto the District Courts the responsibility initially tofashion the remedy, but recognize that while we accorddue regard and respect to the conclusion of the DistrictCourt, we have a duty ourselves to be sure that a decreeis fashioned which will effectively redress proved viola-tions of the antitrust laws." While I recognize that theDistrict Judge has here indicated that he feels divestitureinappropriate 15 years after the illegal acquisition, thepassage of time alone is not sufficient to render divesti-ture inappropriate. United States v. DuPont & Co., 353U. S. 586, 590 (1957) ; United States v. DuPont & Co.,366 U. S. 316 (1961). The Court repeats this rule today.Beyond that I would simply remand this case and leavethe question of remedy to the District Court in the firstinstance, without implying that failure to order divesti-ture would be error.
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CHAMBERS OF
JUSTICE BYRON R. WHITE
May 26, 1971
Re: No. 821 - U.S. v. GreaterBuffalo Press, Inc.
Dear Bill:
You have cured my problemswith the first paragraph on p. 7.I suggest also striking the word"divestiture" in the third para-graph and making the indicatedsubstitution for the next to thelast paragraph.
Thanks very much.
Sincerely,
Mr. Justice Douglas
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CHAMBERS OF
JUSTICE THURGOOD MARSHALL May 17, 1971
Re: No. 821 - United States v. Greater Buffalo Press
Dear Bill:
Please join me.
Sincerely,
Mr. Justice Douglas
cc: The Conference
T. M.
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vay 21. 1971
Retz C 0 C c.
-"ear Byron!
W yen gloss* Join im• in your concurring
opinion tar this case.
Sincerely,
H.A.B.'
Mr. Juitice hit*
cc The Conference
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C
Er_z.,: 821 s. v. Graterr Buffalo *set inc.
0
Dear Byres;
would now like to co-
Lott
Mr. .1 • White
ee: The ConS•rmace
M ay U. 1971
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May 27, 1971
n0rRc No. iin ... v. G offal*ofitifis2t ► h!t=n
:Noor Silly
I sm =West Jolo yews recireelattes of today. Iwoad*: mildly *beet that iaelesies el the first tea wordsties socood Use oe part 7. That is a detail, howlever. whiebI shall lows to you sad Bryon widto to work o. Tao Fro..ones at tiles* words, of estarse. implies that some orsdo sot *hare the .laud view. The "matte* is whothos Iwoivaat tiiks divisteo to be eppesmat.
H.A. B.
us. Jesties Doses*
ce4 Tho Gealera►ee
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