Pairing Public and Private Antitrust Remedies

By Harry First (New York University) & Spencer Weber Waller (Loyola University Chicago School of Law)

Today’s conversation about antitrust civil remedies generally, and the private action specifically, focuses most often on optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm and that those victimized by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust.

The article begins with a discussion of federal government suits under Section 4A of the Clayton Act for damages that the United States has suffered from antitrust violations. We trace the history of this important but little used provision and argue that the federal government should follow up on its pledge to bring this type of damage suit on a more regular basis. We then argue for a more robust public-private partnership to enforce the treble damages provision of the Clayton Act. The enforcement of Section 4A can be the beginning of such a productive partnership and perhaps the impetus for the solution of the many challenges posed by the Illinois Brick doctrine.

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