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Lost in Conversation: The Compensatory Function of Antitrust Law

64 Pages Posted: 28 Mar 2010 Last revised: 7 Apr 2010

Harry First

New York University School of Law

Date Written: March 27, 2010


Today’s conversation about antitrust civil remedies generally, and the private action specifically, focuses most often on optimal deterrence and effectiveness. Generally lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimized by that harm should be entitled to damages from those who have violated the law.

This article seeks to revive the underappreciated compensatory function of antitrust. The article reviews the debates over the Sherman and Clayton Acts, showing that compensation was the main focus of debate, traces the shift from compensation to deterrence in a series of Supreme Court cases decided in the 1960s and 1970s, and concludes with a review of three areas in which a focus on compensation could produce results different than current law and enforcement practice - indirect purchaser suits, suits by persons injured outside the United States, and federal government suits under Section 4A of the Clayton Act for damages that the United States has suffered from antitrust violations.

Keywords: Antitrust, Private Actions, Remedies, Deterrence, Compensation, Indirect Purchaser Suits, Sherman Act, Legislative History

JEL Classification: K21, K41, K42, L40

Suggested Citation

First, Harry, Lost in Conversation: The Compensatory Function of Antitrust Law (March 27, 2010). NYU Law and Economics Research Paper No. 10-14. Available at SSRN: or

Harry First (Contact Author)

New York University School of Law ( email )

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New York, NY 10012-1099
United States
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212-995-4760 (Fax)

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