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Ginsburg, Douglas H. --- "Costs and Benefits of Private and Public Antitrust Enforcement: An American Perspective" [2010] ELECD 353; in Mateus, M. Abel; Moreira, Teresa (eds), "Competition Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Competition Law and Economics

Editor(s): Mateus, M. Abel; Moreira, Teresa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449992

Section: Chapter 5

Section Title: Costs and Benefits of Private and Public Antitrust Enforcement: An American Perspective

Author(s): Ginsburg, Douglas H.

Number of pages: 20

Extract:

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 policy-
makers 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 sub-
stantive law must be the same whether it is enforced by the public pros-
ecutor or by a private plaintiff; the lawfulness of conduct cannot depend
upon who seeks a remedy. In the United States, gatekeeping procedures
are likewise ...