An Empirical Evaluation of the Normative Justiﬁcations for Cartel Criminalisation
Forthcoming, Legal Studies (2017)
Posted: 24 May 2017
Date Written: 2017
A growing number of jurisdictions treat ‘hardcore’ cartel conduct as crime, in the belief that the threat of incarceration is necessary for deterrence. The signiﬁcant economic harm caused by cartels is generally undisputed, but there is disagreement over whether cartel conduct is morally offensive enough to justify criminalisation. Critics argue that it is another example of ‘over-criminalisation’, seeking to regulate an activity that is morally ambiguous. Those in favour have sought to formulate normative justiﬁcations for why cartel conduct should be crime. Many of these rely on the assumption that members of society expect markets to be competitive and believe cartels are undesirable. This paper makes a signiﬁcant contribution by testing this question empirically. Public surveys from the UK, Germany, Italy and the US are used to critically analyse the extent to which normative justiﬁcations for cartel conduct have empirical backing.
Keywords: Competition Law, Cartels, Criminalization
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