Compensation for Antitrust Violations

• Published date: 01 September 2016
• DOI: 10.1177/0003603X16657215
• Author: Daniel A. Crane
• Date: 01 September 2016
• Subject Matter: Articles

Article

Compensation for Antitrust

Violations: An Economic

Perspective

Daniel A. Crane*

Abstract

Antitrust systems that permit private enforcement must choose between prioritizing compensation or

deterrence as primary goals given the inevitable trade-offs. Although a number of systems that have

been transitioning towards private enforcement—the EU in particular—have recently sided with

compensation as the primary goal, it is doubtful that antitrust generally can achieve effective com-

pensation to consumers as compensation is traditionally understood in remedial systems. This article

considers the possibility of reaching for a different definition of compensation than conventionally

understood and casts doubt on the advisability of such a move.

Keywords

private enforcement, compensation, deterrence, damages

This symposium honors the many contributions that Roger Blair has made to antitrust law and policy.

Roger is an economist who has spent much of his distinguished career working on legal problems. As a

lawyer and not an economist, I propose to reciprocate in this article by offering an economic perspec-

tive on a legal problem to which Roger has turned on a number of occasions:

1

the problem of

compensation for antitrust violations.

Any system that provides for private enforcement of its competition laws must make a fundamental

decision whether to prioritize d eterrence or compensation as the goal. That choice is laden with

consequences. It affects the formation of legal rules on standing, claim aggregation, damages, dis-

covery, joint and several liability, contribution, cartel leniency, and many other aspects of the private

enforcement system. Prioritization of goals occurs in every system, whether explicitly and consciously

or implicitly and unconsciously.

* Professor of Law, University of Michigan, Ann Arbor, MI, USA

Corresponding Author:

Daniel A. Crane, University of Michigan, 500 S State St, Ann Arbor, MI 48109, USA.

Email: dancrane@umich.edu

1. See,e.g., Roger D. Blair & Christine A. Piette, Antitrust Injury and Standing in Foreclosure Cases,31J.CORP.L. 401 (2006);

Roger D. Blair & Thomas F. Cotter, Rethinking Patent Damages,10T

EX.INTELL.PROP. L.J. 1 (2001); Roger D. Blair &

Jeffrey L. Harrison, Rexamining the Role of Illinois Brick in Modern Antitrust Standing Analysis,68G

EO.WASH.L.REV.1

(1999); Roger D. Blair & Jeffrey L. Harrison, Rethinking Antitrust Injury,42V

AND.L.REV. 1539 (1989).

The Antitrust Bulletin

2016, Vol. 61(3) 357-364

ªThe Author(s) 2016

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DOI: 10.1177/0003603X16657215

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