This Article focuses on the institutional design of American competition policy. It argues that any long-term effective revival of U.S. antitrust policy requires a better acknowledgement of the key and irreplaceable role played by private litigation and proposes a rethink of private anti-trust enforcement policy.

To unpack the nuanced interconnection between public and private competition enforcement, the Article begins by tracing the rise and fall of private antitrust. It builds on a novel, hand-coded, and comprehensive analysis of the entire Supreme Court antitrust track record—all 474 decisions over 130 years—to outline how an ideologically mixed coalition of anti-enforcement Justices seized on private cases to, in effect, reform U.S. competition policy at large. Indeed, almost all Supreme Court decisions that significantly changed U.S. antitrust laws after the mid-1970s were private litigation cases. Over time, a weakened competition policy led to more unchecked abuses of market power in the U.S. economy. A growing recognition of these abuses motivates current calls for an antitrust revival.

Relying on insights from political economy, this Article then explores the root political causes of these changes at the Supreme Court level and the key role played by private plaintiffs in the enforcement ecosystem. Reformers face a challenge: Too little private litigation exposes competition policy to the risks of long-term political gaming—private parties exploiting the political system to their own advantage—while too much private litigation risks triggering the type of judicial antagonism that helped undermine the system over the past decades.

The Article proposes the creation of “antitrust super-complainants” and the expansion of standing rights, combined with stricter motion practice rules and maintaining treble damages and fee shifting rules, as ways to strike such a balance and help reinvigorate private antitrust enforcement.

Continue reading Rethinking the Key Role of Private Antitrust Enforcement.