Pairing Public and Private Antitrust Remedies

18 Pages Posted: 10 Jul 2019 Last revised: 21 Oct 2020

See all articles by Harry First

Harry First

New York University School of Law

Spencer Weber Waller

Loyola University Chicago School of Law

Date Written: July 1, 2019


Today’s conversation about antitrust civil remedies generally, and the private action specifically, focuses most often on optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm and that those victimized by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust.

The article begins with a discussion of federal government suits under Section 4A of the Clayton Act for damages that the United States has suffered from antitrust violations. We trace the history of this important but little used provision and argue that the federal government should follow up on its pledge to bring this type of damage suit on a more regular basis. We then argue for a more robust public-private partnership to enforce the treble damages provision of the Clayton Act. The enforcement of Section 4A can be the beginning of such a productive partnership and perhaps the impetus for the solution of the many challenges posed by the Illinois Brick doctrine.

Keywords: Antitrust, Private Actions, Clayton Act Section 4A, Treble Damages, Illinois Brick, ACPERA, Class Actions

JEL Classification: K21, K40, K41, K42, L40

Suggested Citation

First, Harry and Waller, Spencer Weber, Pairing Public and Private Antitrust Remedies (July 1, 2019). Albert A. Foer Liber Amicorum, Concurrences, Forthcoming, NYU School of Law, Public Law Research Paper No. 19-28, NYU Law and Economics Research Paper No. 19-23, Available at SSRN:

Harry First (Contact Author)

New York University School of Law ( email )

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New York, NY 10012-1099
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Spencer Weber Waller

Loyola University Chicago School of Law ( email )

25 E Pearson St.
Room 1041
Chicago, IL 60611
United States
312-915-7137 (Phone)
312-915-7201 (Fax)

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