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European Journal of Law and Economics

, Volume 46, Issue 2, pp 245–259 | Cite as

The economic analysis of antitrust consents

  • Joshua D. Wright
  • Douglas H. Ginsburg
Article
  • 100 Downloads

Abstract

Henry G. Manne, our friend, Mentor, and colleague, was a pioneer in the economic analysis of law. By consistently challenging the notion that existing institutions were well understood, he expanded the domain of economics to new and fertile ground. In that spirit, our goal in this article is to bring out of the shadows an institution that has thus far evaded the light of economic analysis: antitrust consents. In our view, competition authorities around the world should be asking themselves what ratio of litigation to settlement is optimal for their agency. Over the last 35 years, the United States Federal Trade Commission and the Antitrust Division of the Department of Justice have shifted dramatically toward greater reliance upon consent decrees than upon litigation to resolve antitrust disputes. As an aid to national competition agencies considering the desirability of adopting a similar approach, we focus upon the importance of economic analysis in evaluating movement along the continuum from a law enforcement model to a regulatory model of agency behavior. We draw upon the U.S. experience to substantiate our claim that the costs associated with a shift toward the regulatory model, including the potential distortion in the development of substantive antitrust doctrine, may be under-appreciated and discernable only in the long run. We acknowledge that consent decrees can and should be an important tool in an antitrust agency’s toolkit for resolving antitrust disputes. We contend, however, that a full economic analysis of reliance primarily upon consent decrees is necessary to inform each competition agency’s strategic decision about the optimal mix of law enforcement and regulatory techniques.

Keywords

Antitrust Competition law Consent decrees 

JEL Classification

K21 K23 L40 L41 L42 L43 L44 L51 

Notes

Acknowledgements

We thank Lindsey Edwards, Brandon Gould, Jacob Hamburger, and Thomas Rucker for valuable research assistance.

Copyright information

© This is a U.S. Government work and not under copyright protection in the US; foreign copyright protection may apply  2018

Authors and Affiliations

  1. 1.Antonin Scalia Law SchoolGeorge Mason UniversityArlingtonUSA
  2. 2.Global Antitrust InstituteArlingtonUSA
  3. 3.Wilson Sonsini Goodrich & RosatiWashingtonUSA
  4. 4.United States Court of Appeals for the District of Columbia CircuitWashingtonUSA

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