Antitrust, Agency and Amnesty: An Economic Analysis of the Criminal Enforcement of the Antitrust Laws Against Corporations

36 Pages Posted: 27 Mar 2002  

Bruce H. Kobayashi

George Mason University - School of Law

Abstract

The recent imposition of record fines on large corporations has been publicly touted by the Antitrust Division as a measure of success. In this article, it is suggested that extension of this policy should be taken with some caution. Because criminal fines are not accurate measures of loss, and because of the vicarious nature of corporate liability, there is a great danger that higher-than-optimal penalties will induce corporations to incur excessive costs in an attempt to avoid these high fines. The potential overdeterrence costs resulting from higher-than-optimal fines is exaggerated by the Antitrust Division's expanded use of the Corporate Leniency Policy. Ironically, the costs of overdeterrence will result in higher prices to consumers, a decrease in welfare, and, ultimately, in the exact effects that the criminal antitrust laws are intended to prevent.

JEL Classification: K21, K14, K42, L41

Suggested Citation

Kobayashi, Bruce H., Antitrust, Agency and Amnesty: An Economic Analysis of the Criminal Enforcement of the Antitrust Laws Against Corporations. George Washington Law Review, Vol. 69, Nos. 5-6, pp. 715-744, October-December 2001; George Mason Law & Economics Research Paper No. 02-04. Available at SSRN: https://ssrn.com/abstract=305260 or http://dx.doi.org/10.2139/ssrn.305260

Bruce H. Kobayashi (Contact Author)

George Mason University - School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

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