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"Speculative" Antitrust Damages, Roger D. Blair, William H. Page

Washington Law Review

The most important antitrust penalties are treble damage awards based on the individual harms that violations cause. For these penalties to function as an economically rational deterrent, there must be a practical mechanism for proving individual harm, and for distinguishing such harm from "speculation." In this article, the authors present an account of that mechanism. First, they argue that the law's measure of antitrust damages is based on a standard of net individual harm that is qualified in certain cases by a principle of net social harm. Net harm is measured by the difference between the plaintiff's actual condition (given …