62 Pages Posted: 19 Sep 2009 Last revised: 8 Oct 2009
Date Written: September 17, 2009
Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and legal judgment day is usually so long that the corporate managers responsible for the planning have left their corporate employer before the employer internalizes the cost of the violation. Private litigation needs to be entirely reconceptualized and redirected toward a forward-looking, problem-solving approach to market power issues.
Keywords: private litigation
JEL Classification: K21
Suggested Citation: Suggested Citation
Crane, Daniel A., Optimizing Private Antitrust Enforcement (September 17, 2009). Vanderbilt Law Review, Forthcoming; University of Michigan Public Law Working Paper No. 164; U of Michigan Law & Economics, Olin Working Paper No. 09-021. Available at SSRN: https://ssrn.com/abstract=1474956