Advances in Competition Policy Enforcement in the EU and North America
Edited by Abel M. Mateus and Teresa Moreira
Chapter 5: Costs and Benefits of Private and Public Antitrust Enforcement: An American Perspective
Douglas H. Ginsburg Although an antitrust regime does well to compensate those who are injured by a violation, the primary challenge facing all antitrust policymakers is to devise a system of enforcement that achieves the optimal amount of deterrence; that is, a violation should be deterred if and only if the benefit of deterring it exceeds the cost of uncovering and penalizing the responsible party and of indirectly deterring other anticompetitive conduct. In this chapter, I consider how to achieve optimal enforcement by allocating responsibility between public and private complainants and then calibrating the incentives for private enforcement. Section I reviews the incentives created by the contemporary American antitrust system. Section II suggests those incentives are not always well aligned with achieving optimal deterrence in different areas of antitrust enforcement. Section III explores how current and future structural reforms might correct the imbalance. INTRODUCTION The level of enforcement present in any jurisdiction is a function of the substantive law, gatekeeping procedures – by which I mean, for example, pleading standards and burdens of proof – and the incentives facing potential plaintiffs. Each of these components of the legal framework affects how responsibility for enforcement should be allocated. The substantive law must be the same whether it is enforced by the public prosecutor or by a private plaintiff; the lawfulness of conduct cannot depend upon who seeks a remedy. In the United States, gatekeeping procedures are likewise largely the same in civil cases whether the plaintiff is public or private, though there are...
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