Real Crime: Criminal Competition Law
29 Pages Posted: 29 Jun 2013
Date Written: June 27, 2013
This paper investigates the theoretical basis for criminalizing anticompetitive behavior that violates national antitrust laws. Though many scholars justify criminal antitrust sanctions solely on theories of utilitarian deterrence, I argue that retributivist justifications are relevant to whether or not individuals and corporations should be subject to conviction for these white collar crimes. The unique stigma of criminal sanctions may require the justification of the moral blameworthiness of the acts and actors. The paper also compares relative levels of corporate fines in jurisdictions where criminal prosecution is available and those where the sanctions are limited to civil remedies, reviews the policy positions of non-governmental organizations including the OECD and ICN, and finally, the raises the challenges of counseling and obtaining leniency in multi-jurisdictional investigations that have differing sanctions.
The paper was presented at conference “Antitrust Marathon,” a series of roundtable discussions among competition and consumer law experts on the enduring issues of comparative competition law. The series is co-sponsored by the Institute for Consumer Antitrust Studies of Loyola University Chicago School of Law and the Competition Law Forum of the British Institute of International and Comparative Law. The Rome Antitrust Marathon is also co-sponsored by the University of Rome I (Sapienza) and the Italian Competition Authority. It will be published in the European Competition Journal.
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