Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws

61 Pages Posted: 7 Mar 2010 Last revised: 14 Oct 2010

Robert H. Lande

University of Baltimore - School of Law

Joshua P. Davis

University of San Francisco - School of Law

Date Written: March 5, 2010

Abstract

This article shows that private enforcement of the U. S. antitrust laws-which usually is derided as essentially worthless-serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division of the U.S. Department of Justice.

The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of a startling finding. Even those who do not deride private enforcement usually believe its only function is to compensate victims of antitrust violations by modest amounts.

Significant deterrence is commonly thought to be the effect only of government enforcement, especially criminal enforcement. Our article's conclusion that the amounts of payouts in private cases are actually staggeringly high-so high that they deter anticompetitive conduct more effectively than the criminal fines and prison sentences resulting from Department of Justice cases-is thus the opposite of the consensus within the antitrust community. Indeed, we hope this article causes many in both the United Sates and in Europe to reevaluate their views as to the overall efficacy of private antitrust enforcement.

Keywords: antitrust, private antitrust enforcement, private antitrust cases, deterrence, criminal antitrust enforcement, compensation, optimal deterrence, cartels

JEL Classification: L40, L49, K21, K39, K49

Suggested Citation

Lande, Robert H. and Davis, Joshua P., Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws (March 5, 2010). Brigham Young University Law Review, 2011; Univ. of San Francisco Law Research Paper No. 2010-17; University of Baltimore School of Law Legal Studies Research Paper No. 2010-09. Available at SSRN: https://ssrn.com/abstract=1565693 or http://dx.doi.org/10.2139/ssrn.1565693

Robert H. Lande (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

Josh Paul Davis

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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