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Antitrust

All Faculty Scholarship

Litigation

2016

Articles 1 - 2 of 2

Full-Text Articles in Law

Class Warfare: Why Antitrust Class Actions Are Essential For Compensation And Deterrence, Robert H. Lande Apr 2016

Class Warfare: Why Antitrust Class Actions Are Essential For Compensation And Deterrence, Robert H. Lande

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Recent empirical studies demonstrate five reasons why antitrust class action cases are essential: (1) class actions are virtually the only way for most victims of antitrust violations to receive compensation; (2) most successful class actions involve collusion that was anticompetitive; (3) class victims’ compensation has been modest, generally less than their damages; (4) class actions deter significant amounts of collusion and other anticompetitive behavior; and (5) anticompetitive collusion is underdeterred, a problem that would be exacerbated without class actions. Unfortunately, a number of court decisions have undermined class action cases, thus preventing much effective and important antitrust enforcement.


Antitrust Balancing, Herbert J. Hovenkamp Apr 2016

Antitrust Balancing, Herbert J. Hovenkamp

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Antitrust litigation often confronts situations where effects point in both directions. Judges sometimes describe the process of evaluating these factors as “balancing.” In its e-Books decision the Second Circuit believed that the need to balance is what justifies application of the rule of reason. In Microsoft the D.C. Circuit stated that “courts routinely apply a…balancing approach” under which “the plaintiff must demonstrate that the anticompetitive harm…outweighs the procompetitive benefit.” But then it decided the case without balancing anything.

The term “balancing” is a very poor label for what courts actually do in these cases. Balancing requires that two offsetting effects …