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Cuneo, Jonathan W. --- "Differing Traditions" [2010] ELECD 743; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 3

Section Title: Differing Traditions

Author(s): Cuneo, Jonathan W.

Number of pages: 8

Extract:

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 inde-
pendent Federal judiciary, makes large scale litigation possible. The Congressional deci-
sion to afford plaintiffs' treble damages and attorneys' fees, as well as joint ...