Crane, Daniel A. --- "The Economics of Antitrust Enforcement" [2010] ELECD 269; in Hylton, N. Keith (ed), "Antitrust Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Antitrust Law and Economics

Editor(s): Hylton, N. Keith

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207319

Section: Chapter 1

Section Title: The Economics of Antitrust Enforcement

Author(s): Crane, Daniel A.

Number of pages: 22

Extract:

1 The economics of antitrust enforcement
Daniel A. Crane1


Antitrust law is only as good as the mechanisms by which it is enforced.
Substance and procedure are not distinct bodies, but part of a continuum
of legal and institutional rules, practices, and mechanisms working con-
junctively to advance consumer welfare and efficiency. It is impossible
to understand the substantive rules without understanding the relevant
enforcement mechanisms. Judges tend to formulate liability rules with an
eye on enforcement mechanisms. For example, judges tend to be skeptical
of the ability of lay juries to decide predatory pricing cases, so they for-
mulate deliberately underinclusive liability rules to thin out the number of
predation cases reaching trial.2 Similarly, the Supreme Court has made it
hard to plead conspiracy in cartel cases because trial courts have trouble
preventing discovery costs from skyrocketing.3 Evaluating liability rules
in a vacuum, without understanding the institutional considerations that
motivate judges, might lead to false impressions about the courts' views of
the merits of various competitive practices.
Many of the procedural and enforcement rules that apply to antitrust
cases were not designed for antitrust, but are general features of civil or
criminal law. Sometimes, mismatches occur between procedure's general-
ity and antitrust's specificity. Generic enforcement methods are not always
well-suited to the peculiarities of antitrust.
In the US legal system, antitrust enforcement is decentralized and
largely uncoordinated. There are two separate federal antitrust enforce-
ment agencies, fifty state attorneys general with enforcement powers,
liberal ...