T CHAPTER III FINDINGS OF FACT HE published decisions of an administrative tribunal, like those of a court of justice, should fulfill two important objects. They should constitute the authentic public record of what was done by the tribunal in a particular case, and they should afford an accessible collection of precedents by which its probable action in other cases can be forecast. The latter function is perhaps the more important of the two, especially where the tribunal is administering laws as general in their terms, and as important to the business world, as the Clayton Act and the Trade Commission Act. It was by the gradual accumulation of precedents and the slow evolution of principles tested by concrete cases, that the application of those statutes was to be determined. To the five published volumes of Federal Trade Commission decisions we therefore turn, to obtain an estimate of the character and quality of the Commission's findings, and to ascertain how successful the Commission has been in giving content and vitality to the laws which it is administering. The published report of a decision of the Federal Trade Commission is made up of the full text of the Commission's complaint, and of its formal findings of fact, conclusions of law, and order. The answer of the person complained of is not published, nor is there any summary of the respondent's contentions or of the evidence presented on his behalf. It does not seem to me that this method of presenting the facts is fair to the respondent. It will be recalled that the Commission is itself the complainant in each case, and that it may not file a complaint until it "has reason to believe" that the person complained of has violated the law. In a provisional way, it is compelled to prejudge every case that comes before it. The authors of the statute apparently believed that a just decision would nevertheless be assured by the provision made for hearings, and for opportunity to present evidence on behalf of the respondent. Yet the evidence so presented, and the contentions of the respondent, are buried in the official files at Washington, where only the curious inquirer can discover them. One who has not the time or opportunity to search the original docket, will naturally gain an opinion of the case from the published decision, and here he will find only the accusations of the Commission as complainant, and the conclusions of the same Commission as judge. He will have no opportunity to ascertain from a survey of the evidence and of the opposing contentions, whether or not the conclusions are warranted, or appear to have been arrived at fairly and impartially. In defense of the Commission's practice, it may be admitted that 90 per cent of the answers in these cases are probably not worth printing. Sometimes the answer is no more than a formal paper, three or four lines in length, advising the Commission that the respondent herein "now comes" and denies each and every allegation of the complaint. More often it is a long, wearisome document, full of the verbose ambiguities so dear to the expert pleader, formally admitting, denying, or professing lack of information or belief as to each allegation, seriatim, of the complaint. Only rarely does it serve to narrow the field of controversy or throw light on the issues as they appear to the respondent. I have read, at random, perhaps a hundred of these answers as they appear in the Commission's dockets, and the result has been to confirm a scepticism as to the value of lawyers' pleadings in cases of this sort. Occasionally, it is true, there is a striking exception. It sometimes happens that an officer of a respondent company, treating the com plaint as a business communication, turns to his stenographer and dictates, out of his own experience and knowledge of the situation, a letter giving the facts and arguments which in his opinion justify the practice complained of. Such a letter is sometimes docketed as an answer, and it is apt to be refreshingly direct and informative, as compared with the run of lawyers' pleadings. Probably the respondent's attorney would consider it an unfortunate indiscretion. These are, however, exceptions, and, as a general rule, it may be conceded that little would be gained by encumbering the published reports with the text of the formal answers. It is not necessary to set forth the pleadings textually, however, to give a fair statement of the respondent's side of a case, and the Commission's failure to do so detracts greatly from the value of its published decisions. They are not only, for this reason, one-sided and unfair to respondents, but their usefulness as precedents is greatly impaired, for unless we know what facts or arguments were presented in defense, it is generally impossible to judge correctly the scope and application of the Commission's decision. It should be observed, moreover, that formal findings are made and published only in those cases in which the decision supports the charges of the Commission's complaint. Where the complaint is disproved, or the facts alleged are found not to constitute a violation of law, the complaint is dismissed by formal action of the board, but the text of the decision is not made public. In each volume of decisions there is an appendix containing a tabular list of "cases in which orders of discontinuance or dismissal have been entered." The table shows the docket number and the name of the respondent, the nature of the commodity (e.g., "razors" or "shoes" or "drugs and druggists' sundries"). In another column there is a brief indication of the nature of the charge, such as "false and misleading advertising" or "harassing competition" or "commercial bribery (money and gratuities)." The next column shows whether the dismissal or discontinuance was upon trial, or stipulation, or on respondent's answer. The final column is headed "Reason for discontinuance or dismissal," but the entry in this column rarely goes beyond such scant phrases as "failure of proof" or "evidence not sufficient to support an order," and in the majority of cases the entry is "no reasons assigned." This failure to give to adverse decisions the same publicity as is given to decisions supporting the complaint is perhaps based upon a literal interpretation of the statute. Section 5 of the Trade Commission Act requires a "report in writing" only where the Commission, upon hearing, is of the opinion that the method of competition in question is prohibited by the statute. Yet the authority conferred in Section 6 (f), "to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use," is surely sufficient to warrant a detailed public statement of the facts and reasons warranting dismissal. To fail to make such a statement is manifestly unfair to the person complained of. If charges have been made which prove to have been erroneous, the respondent is entitled to an unequivocal and detailed exoneration. A mere dismissal of the case with "no reasons assigned" is not sufficient. And of course the reports suffer greatly, as a storehouse of precedents, from the fact that only decisions favorable to the Commission are published. Surely it is important that the business world should know what it may lawfully do, as well as what is found by the Com mission to be unlawful. The next point that will occur to the student of the Commission's published reports is the form which the "findings of fact" assume. Although the statute calls for a report in writing," upon the facts of the case, there is no narrative statement of the kind usually included in the opinion of a court or commission. Instead there are formal "findings," in numbered paragraphs, couched generally in the artificial legal phraseology of a common law pleading, and designed apparently to embody the Commission's ultimate conclusions upon the major issues of fact or judgment thought to be involved, rather than to set forth the happenings or events or economic considerations out of which the controversy arises. Formal "findings" are a notoriously unsatisfactory means of conveying information. Almost any controversy, and especially an economic or business controversy of the kind that comes before the Federal Trade Commission, has a history, and a setting. To understand the business or economic significance of a practice, we must know something of its origin, of the objects and purposes of those who pursue it, of the persons who object to it and their reasons, and of its practical effect. We need a descriptive and narrative report, couched in simple and direct language. Even a statement of the simplest occurrence suffers when it is couched in "legal" phraseology. To say that "for more than one year last past said respondent has given and offered to give employees of his customers and prospective customers, as an inducement to influence their employees to purchase . . . from the respondent, without other consideration therefor, gratuities consisting of liquors, cigars, meals, theater tickets and other personal property," carries conviction only if we have full confidence in the judgment of the person whose conclusion it embodies. If the examiner would only tell us what happened, his finding would carry more weight. It would be better to say: "The evidence seems clearly to establish that the giving of gratuities on a large scale to employees of customers, was a settled practice of this respondent. Five of his salesmen took the |