Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 4: Defining Antitrust Violations in the US
Bonny E. Sweeney1 Introduction Federal and state governments and private parties have been actively enforcing competition laws in the United States since the passage of the Sherman Act in 1890. In addition to the Sherman, Clayton and Federal Trade Commission Acts, which are the principal federal statutes regulating competition, there are numerous additional federal laws and a multitude of competition laws from every state and the District of Columbia. While the welter of federal statutes, state statutes and judge-made law can be confusing and at times contradictory, there are broad common themes that run through all of these sources of law. First, while there is disagreement about what the primary goal of competition law ought to be,2 federal and state courts generally agree that these statutes should be interpreted in a manner that ‘will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress . . . .’3 For this reason, modern competition law in the United States is concerned with the protection of competition, not competitors (with a few notable exceptions).4 A second defining characteristic of United States competition law is the importance of the private plaintiff. Unlike in many other jurisdictions, private parties can sue for redress of antitrust violations. In fact, most antitrust cases in the United States are litigated solely by private parties. While there are many instances of private litigation following government prosecutions or investigations, most private litigation is independent of any government investigation. In some cases,...
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