How Long Is Too Long? Disentangling the Disposition of Antitrust Cases in the U.S. Federal Courts

• Published date: 01 March 2024
• DOI: http://doi.org/10.1177/0003603X241228703
• Author: Michael L. Polemis*
• Date: 01 March 2024
• Subject Matter: Articles

https://doi.org/10.1177/0003603X241228703

The Antitrust Bulletin

2024, Vol. 69(1) 3 –23

© The Author(s) 2024

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0003603X241228703

journals.sagepub.com/home/abx

Article

How Long Is Too Long? Disentangling

the Disposition of Antitrust Cases in

the U.S. Federal Courts

Michael L. Polemis*,**,***

Abstract

The contribution of this study is to disclose the main determinants of the duration of the U.S.

antitrust federal court decisions, an issue that has been nearly overlooked by most related studies.

As an indirect measure for the time needed to dispose cases, this study uses the duration of the case

from the filing of the complaint to the date of the opinion. Using this metric, we employ parametric

and nonparametric panel data techniques on a sample of 613 appellate court proceedings on U.S.

antitrust cases during the period 1995–2018. The empirical research reveals spatial heterogeneity

in terms of case duration among the circuits of the appellate U.S. courts. The econometric analysis

supports that the duration of appellate antitrust court decisions depends on administrative-related

factors including the way the case was filed in the circuit, the jurisdiction in the case, the “pro se”

representation of the undertakings, and the nature of the final judgment. Lastly, based on the flexible

semi-parametric analysis, we argue that the impact of these parameters on case duration is linear,

regardless of the specification of the parametric part of the model.

Keywords

law and economics, antitrust, semi-parametric analysis, heterogeneity, US

I. Introduction

. . . Justice too long delayed is justice denied. (Martin Luther King Jr.)

It is widely accepted by judges, lawyers, and legal professionals that the duration of appellate court

proceedings is one of the most important drivers of judiciary efficiency.1 The speed and accuracy at

which the court decisions are issued and implemented to the “stakeholders” (e.g., corporations and

*Associate Professor of Industrial Economics, Department of Economics, University of Piraeus, Piraeus, Greece

**Hellenic Competition Commission, Athens, Greece

***Hellenic Open University, Patras, Greece

Corresponding Author:

Michael L. Polemis, Department of Economics, Piraeus University, Piraeus 185 34, Greece.

Email: mpolemis@unipi.gr

1228703ABXXXX10.1177/0003603X241228703The Antitrust BulletinPolemis

research-article2024

1. See for example F. Smuda et al., Determinants of the Duration of European Appellate Court Proceedings in Cartel Cases,

53 J. Com. Μar. St. 1352–69 (2015) and K. Hüschelrath et al., Cartel Enforcement in the European Union: Determinants

of the Duration of Investigations, 34 Eur. Comp. Law rEv. 33–39 (2013).

4 The Antitrust Bulletin 69(1)

2. See, inter alia, D. Acemoglu et al., Institutions as the fundamental cause of long-run growth, MIT papEr (2004); O.

Blanchard & F. Giavazzi, Macroeconomic Effects of Regulation and Deregulation in Goods and Labor Markets, 118 Q. J.

ECon. 879–907 (2003), https://www.nber.org/system/files/working_papers/w10481/w10481.pdf.

3. For an excellent study of the U.S. antitrust litigation, see among others M. Panhans & R. Schumacher, Theory in Closer

Contact With Industrial Life: American Institutional Economists on Competition Theory and Policy, 17 J. InSt. ECon.

781–98 (2021).

4. Since 1914 and the amendment of the Clayton Act, the Federal Trade Commission (FTC) has been also assigned both with

investigatory and adjudicative powers like the Department of Justice (DoJ), which until then served as the sole enforcement

agency in antitrust matters.

5. Hüschelrath et al., supra note 1.

6. https://www.justice.gov/atr/file/788426/download.

7. https://ec.europa.eu/competition-policy/european-competition-network/statistics_en#ecl-inpage-792.

8. Under the auspices of Section 7 of the Clayton Antitrust Act as amended, mergers, acquisitions, and certain joint ventures

where the effect may be to substantially lessen competition must be prohibited.

9. See Smuda et al., supra note 1.

10. See M. Hellwig et al., Settlements and Appeals in the European Commission’s Cartel Cases: An Empirical Assessment, 52

rEv. Ind. org. 55–84 (2018); S. Shavell, The Appeals Process as a Means of Error Correction, 24 J. LEg. Stud. 379–426

(1995); S. Shavell, The Appeals Process and Adjudicator Incentives, 35 J. LEg. Stud. 1–29 (2006); S. Shavell, On the

Design of the Appeals Process: The Optimal Use of Discretionary Review Versus Direct Appeal, 39 J. LEg. Stud. 63–108

(2010); G. Levy, Careerist Judges and the Appeals Process, 36 rand J. ECon. 275–97 (2005).

individuals) constitute the cornerstone of a coherent and efficient judicial system, thus contributing to

the long-run economic growth.2

Although antitrust legislation dates to 1890 when the Sherman Act shaped the legal framework for

price-fixing agreements (Section 1 of the Sherman Act), best known as “cartels” and abuse of domi-

nance (Section 2 of the Sherman Act), little is known about the key determinants of the duration of

appellate court investigations for antitrust cases.3 A deeper knowledge of these parameters could assist

the workload of the two U.S. competent agencies (Federal Trade Commission and Department of

Justice [DoJ]) to reach administrative and judiciary goals.4 Moreover, it would also help the undertak-

ings (appellants and appellees) to allocate their (scarce) resources (e.g., time, money, labor hours) dur-

ing the process of an appeal before a U.S. circuit.5

According to the workload statistics of the Antitrust Division of the U.S. DoJ during the fiscal years

2010–2019, the number of total investigations initiated has shown a significant increase equal to 16.5

percent (from 115 cases in 2010 to 134 cases in 2019).6 From a comparative perspective, it is notewor-

thy that during the same period, the total number of antitrust case investigations examined by the

European Commission showed a decline equal to 18.3 percent (from 169 cases in 2010 to 138 cases in

2019).7

Of the separate types of antitrust investigations (e.g., restraint of trade, monopoly, mergers, others),

merger cases of the Clayton Act (see Section 7) are the most prominent ones, since their number has

shown an increase reaching seventy-two cases in 2019 compared to sixty-four cases back in 2010.8

However, this overall increasing trend does not reflect an analogous rise in the total amount of fines and

penalties imposed since, within the same period, the total fines imposed by the DoJ exhibit a 25-percent

decrease (from $343 million in 2010 to $257.2 million in 2019), while the average number of years of

incarceration has declined on average by approximately 80 percent (from two years and six months in

2010 to six months in 2019). It must be noted though that, during the last two fiscal years (2018–2019),

the total amount of fines and penalties imposed for antitrust cases has reached almost 29 percent (from

199.3 million to $257.2 million in 2019).

Based on the aforementioned data, the convicted firms for breaching antitrust violations incur sig-

nificant incentives to stand before the appellate courts (e.g., the Court of Appeals and Supreme Court),

to rule out the decision imposed by the antitrust agency.9 This is driven mainly by two main reasons

including the reduction of the occurrence of legal errors and the refinement of existing case law and

regulations.10 Interestingly, comparing the latest numbers of first-stage appeals (Court of Appeals) in