United States Department of Justice, Antitrust Division Public Roundtable Series on the Relationship between Competition and Regulation, Second Roundtable – On Consent Decrees: Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

10 Pages Posted: 27 Apr 2018

See all articles by Tad Lipsky

Tad Lipsky

George Mason University - Antonin Scalia Law School

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty

Date Written: April 25, 2018

Abstract

The Comment outlines the basic economic analysis that applies to agency consideration of whether to resolve cases by consent decree or by litigation. It describes past experience with government antitrust decrees that required modification or termination due to the passage of time or significant changes in the affected markets, as well as certain decrees whose effectiveness in serving antitrust objectives was questionable even at the time of initial entry. The Comment points out certain dangers to the consumer interest in vigorous competition that are associated with excessive agency reliance on consent decrees, and recommends institutional vigilance as a safeguard against such dangers. Finally, the Comment notes the continuing potential value of so-called conduct remedies, as distinct from structural remedies, particularly in the context of vertical acquisitions, while recognizing that structural remedies are properly accepted as the preferable mode of relief, especially in cases involving horizontal acquisitions.

Keywords: Consent decree, antitrust remedy, structural remedy, conduct remedy, behavioral remedy, economic analysis, institutional safeguard, vertical acquisition, horizontal acquisition, arbitration

Suggested Citation

Lipsky, Tad and Wright, Joshua D. and Ginsburg, Douglas H. and Yun, John M., United States Department of Justice, Antitrust Division Public Roundtable Series on the Relationship between Competition and Regulation, Second Roundtable – On Consent Decrees: Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University (April 25, 2018). George Mason Law & Economics Research Paper No. 18-08. Available at SSRN: https://ssrn.com/abstract=3169451 or http://dx.doi.org/10.2139/ssrn.3169451

Tad Lipsky (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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