Lande and Davis Post Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws

This article (available here) shows that private enforcement of the U. S. antitrust laws-which usually is derided as essentially worthless-probably serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division of the U.S. Department of Justice.

The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on evidence. To help fill this void AAI asked the authors to conduct research on a variety of empirical topics. Although AAI helped fund this study, its conclusions are those of Profs. Lande & Davis.

The article develops and explores the implications of a startling finding. Even those who do not deride private enforcement usually believe its only function is to compensate victims of antitrust violations by modest amounts. Significant deterrence is commonly thought to be the effect only of government enforcement, especially criminal enforcement. The article's conclusion that the amounts of payouts in private cases are actually staggeringly high-so high they probably deter anticompetitive conduct more effectively than the criminal fines and prison sentences resulting from

Department of Justice cases-is thus the opposite of the consensus within the antitrust community. Indeed, the authors hope this article causes many in both the United Sates and in Europe to reevaluate their views as to the overall efficacy of private antitrust enforcement.