Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 3: Differing Traditions
Jonathan W. Cuneo1 Private antitrust enforcement consists of two components: first, a competition law with one or more cognizable offenses; and second, a viable means for private parties to redress those offenses. As this Handbook illustrates, it is surely possible to have the first without the second. The United States is historically the center of gravity for both components – antitrust and private rights of action. Even before the sea change in America’s trading partners’ views of the antitrust laws, foreign interests,2 including some from Latin America,3 pursued claims in American courts under the antitrust laws because the United States was the best – if not the only – place to turn to seek legal redress. So American are the fundamental concepts that both ‘trusts’ and ‘antitrust’ are American contributions to the English lexicon. In this context, ‘trust’ is a nineteenth century term that refers to large agglomerations of economic power under common control. Since passage of the first antitrust act – the Sherman Act in 1890 – the United States has made an at least lip-service commitment to a national policy of free and open competition. Enforcement of national policies through high-stakes private litigation which carefully balances the rights of aggrieved parties against the due process rights of defendants is also a venerable American tradition. This evenhanded tradition, which includes an independent Federal judiciary, makes large scale litigation possible. The Congressional decision to afford plaintiffs’ treble damages and attorneys’ fees, as well as joint and several liability and the class device, make...
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