Toward a Realistic Comparative Assessment of Private Antitrust Enforcement

Over the course of her extraordinary career, Eleanor Fox has contributed in many vital ways to our understanding of the importance of institutional analysis in antitrust and competition law. Most importantly, Eleanor has become the leading repository of knowledge about what is happening around the globe in the field of competition law and its enforcement institutions. At a time when much of the field of antitrust was moving in the direction of theoretical generalization, formal modeling, game theory, and the like, Eleanor tirelessly worked the globe to discover the actual practice of competition law in the world. She left no doubt that she preferred an inductive, fact-based approach to studying competition law to armchair theorizing. Until recently, comparative institutional analysis in antitrust centered largely on comparing public enforcement institutions – for example, on comparing independent agency versus prosecutorial models, sectoral regulators versus generalist competition agencies, administrative versus criminal enforcement, and the like. However, the rise of private antitrust enforcement in many jurisdictions requires extending institutional analysis to comprehend comparisons between private enforcement systems, between public and private systems, and taking account of the complex interactions between public and private systems. This chapter will propose a framework for conducting comparative analysis of antitrust systems given the rising growth of private enforcement. In particular, I shall argue that a realistic assessment of the country specific practice of private antitrust litigation requires looking beyond the stated objectives and justifications for the practice – such as providing compensation to injured consumers or complementing public enforcement – and to the actual effects of private enforcement on the overall antitrust ecosystem. The evidence from the United States’ long and not always felicitous experience with private enforcement suggests that private litigation has important feedback effects on public enforcement and may, in some contexts, diminish the incidence and efficacy of public enforcement. As private antitrust enforcement grows around the globe, it will be important to study whether these effects are replicated or whether, instead, public enforcement remains predominant and relatively unmodified