How Italian Colors Guts Private Antitrust Enforcement by Replacing it with Ineffective Forms of Arbitration

Posted by Social Science Research Network

How Italian Colors Guts Private Antitrust Enforcement by Replacing it with Ineffective Forms of Arbitration–  Einer Elhauge (Harvard Law School)

Abstract: The recent US Supreme Court decision in American Express v. Italian Colors Restaurant threatens to gut private antitrust enforcement in the United States by replacing it with ineffective forms of arbitration. The Court’s logic that the right to pursue a claim does not include a right to prove it is incoherent. The notion that voluntary consent means arbitration provisions must benefit buyers ignores the fact that buyers have collective action problems that are what justify antitrust law in the first place.