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Towards An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua Davis, Robert Lande
Towards An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua Davis, Robert Lande
Joshua P. Davis
The dominant view in the antitrust field is that private enforcement cases, and especially class actions, accomplish little or nothing positive but, on the contrary, are counterproductive. Despite strongly worded convictions, that view has been premised on anecdotal, self-serving and insufficiently substantiated claims. Indeed, the authors' 2008 study of 40 private cases appears to constitute the only systematic effort to gather information about a significant number of private antitrust actions. That study generated a great deal of controversy, including questioning of our conclusions by high officials at the Department of Justice and by Professor Daniel Crane at the University of …
Jurisprudential Jujutsu, Joshua Davis
Jurisprudential Jujutsu, Joshua Davis
Joshua P. Davis
Jules Coleman’s article, “The Architecture of Jurisprudence,” 121 YALE L.J. 2 (2011), seeks to adapt legal positivism to accommodate a greater degree of normativity than conventional wisdom would allow. One might describe his effort to preserve positivism by yielding as a form of jurisprudential jujutsu. This response argues that Coleman’s jujutsu, at least as he has developed it thus far, fails to the extent law has moral legitimacy.
The Extraordinary Deterrence Of Private Antitrust Enforcement: A Reply To Werden, Hammond, And Barnett, Joshua Davis, Robert Lande
The Extraordinary Deterrence Of Private Antitrust Enforcement: A Reply To Werden, Hammond, And Barnett, Joshua Davis, Robert Lande
Joshua P. Davis
Our article, "Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws," 2011 B.Y.U. L. Rev. 315, documented an extraordinary but usually overlooked fact: private antitrust enforcement deters a significant amount of anticompetitive conduct. Indeed, the article showed that private enforcement "probably" deters even more anticompetitive conduct than the almost universally admired anti-cartel enforcement program of the United States Department of Justice. In a recent issue of Antitrust Bulletin, Gregory J. Werden, Scott D. Hammond, and Belinda A. Barnett challenged our analysis. They asserted that our comparison “is more misleading than informative.” It is unsurprising that they …