Rethinking the Key Role of Private Antitrust Enforcement
Volume 114 Issue 2 Date 2025 Rethinking the Key Role of Private Antitrust Enforcement by Filippo Lancieri This Article focuses on the institutional design of American competi tion 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 coali tion 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 competi tion 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 competi tion 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 Enforcemen t . Lancieri_Rethinking-the-Key-Role-of-Private-Antitrust-Enforcement
Executive Summary
This article, 'Rethinking the Key Role of Private Antitrust Enforcement,' by Filippo Lancieri, argues that a revival of U.S. antitrust policy requires acknowledging the key role of private litigation. The author contends that private antitrust enforcement policy needs a rethink, citing the rise and fall of private antitrust and the role of private plaintiffs in the enforcement ecosystem. Lancieri proposes the creation of 'antitrust super-complainants' and the expansion of standing rights to strike a balance between private enforcement and judicial antagonism. The article's comprehensive analysis of the Supreme Court's antitrust track record and its insights from political economy make a compelling case for reform.
Key Points
- ▸ Private antitrust enforcement has played a crucial role in shaping U.S. antitrust policy
- ▸ The Supreme Court's ideologically mixed coalition has seized on private cases to reform competition policy
- ▸ Private plaintiffs have exploited the political system to their advantage, undermining competition policy
Merits
Comprehensive Analysis
The article's novel, hand-coded analysis of the Supreme Court's antitrust track record provides a thorough understanding of the rise and fall of private antitrust.
Policy-Relevant Insights
The article's insights from political economy offer valuable perspectives on the root causes of changes in the Supreme Court's antitrust decisions.
Practical Solutions
Lancieri's proposals for creating 'antitrust super-complainants' and expanding standing rights offer practical solutions to balance private enforcement and judicial antagonism.
Demerits
Limited Context
The article focuses primarily on the U.S. antitrust policy context, which may limit its applicability to other jurisdictions.
Overemphasis on Private Enforcement
The article's emphasis on private antitrust enforcement may overlook the importance of public enforcement mechanisms in achieving effective competition policy.
Expert Commentary
Lancieri's article offers a nuanced and well-researched analysis of the role of private antitrust enforcement in shaping U.S. antitrust policy. The article's proposal for 'antitrust super-complainants' and expanded standing rights is a thought-provoking solution to balance private enforcement and judicial antagonism. However, the article's limited context and overemphasis on private enforcement may limit its broader applicability. Ultimately, the article's insights and proposals are a valuable contribution to the ongoing debate on U.S. antitrust policy and the role of private enforcement.
Recommendations
- ✓ Future research should consider the applicability of the article's proposals to other jurisdictions and the potential implications for competition law enforcement more broadly.
- ✓ Scholars and policymakers should engage in a more nuanced discussion of the role of private antitrust enforcement in shaping U.S. antitrust policy and the balance between private enforcement and public enforcement mechanisms.
Sources
Original: Georgetown Law Journal
