Regulatory Specialization, Judicial Discretion, and the Evolution of Legal Constraints on Anticompetitive Practices: An Empirical Analysis

Abstract:     
The role of private enforcers in the implementation of laws against anticompetitive practices remains a subject of considerable controversy in both developed and developing countries. The economic approach to the analysis of crime and punishment suggests that private rights of action can complement the information and incentives of public agents in the identification and deterrence of costly market behavior. This paper studies the complementarities between public and private enforcement mechanisms from an empirical perspective. Long term data on case filings, bureaucratic resources, and judicial outcomes from the United States reveal that mixed regimes allow for specialization of tasks between public and private enforcers. The analysis further documents how judicial discretion under the rule-of-reason approach can limit the predictability and credibility of rules against anticompetitive practices in mixed regimes.

Keywords: Competition law, private enforcement, public enforcement

JEL Classification: D78, K21, L40

working papers series