Contemporary Antitrust Federalism: Cluster Bombs or Rough Justice?

Abstract

The period spanning 1992 through 2000 was a time of significant federal and state antitrust activity. A major contribution to this activity was the proliferation of high-profile antitrust cases in which a single nexus of facts and conduct spawned multiple actions at both the state and federal levels. Judge Richard Posner has disapprovingly called this the "cluster bomb effect." This development has dramatically increased potential antitrust liability for defendants, and it raises complex questions about the interrelationship of federal, state, and private enforcement actions and about the line between "duplicative" and "nonduplicative" litigation. This chapter explores the phenomenon of multiple enforcement as one of manifestation of antitrust federalism and suggests an enduring on-going role for state antitrust enforcement for both substantive case law development and enforcement policy.

Keywords: antitrust, federalism, state enforcement, parens patriae, indirect purchasers, Illinois Brick, Microsoft, resale price maintenance, monopolization, Federal Trade Commission, class action, Richard Posner, private enforcement, state attorneys general

JEL Classification: K21, K41, K42, L4, L8, L41, L42