Does Criminalization of Cartels Work? A Few Lessons from the United States Experience
| Published date | 01 June 2012 |
| Author | Jesse W. Markham |
| Date | 01 June 2012 |
| DOI | 10.1177/203228441200300202 |
| Subject Matter | Conference Paper |
116 Intersentia
CONFERENCE PAPERS
DOES CRIMINALIZATION OF
CARTELS WORK?
A Few Lessons from the United States Experience
J W. M J*
In his excellent paper on the introduction of private antitrust remed ies in Britain,
Donald Baker considered that the followi ng rhetorical question might then have been
posed by Britain to the United States: “Please tell us whether you would recommend
that we enact a new Statute of Monopolies… embodyi ng your language, policies, and
experiences in providi ng private remedies for our consumers and enterprises?”1 Baker
went on to answer equivocally. Today, as many jurisdictions consider embracing or
strengthening criminal sa nctions within their antitrust enforcement models, the
question might well now be asked of the United States: “Please tell us whether you
would recommend that we enact a new competition stat ute embodying your language,
policies and experiences to i nclude criminal nes and incarceration as competition
law sanctions?” Like Ba ker, I will answer equ ivocally here.
Of course, learning from the United States experience means either adopting our
successes or avoiding our fai lures – and discerning the di erence is not always easy.
Since there is considerable controversy about the proper role of ant itrust policy, there
will always be disagreement as to whet her the law is working properly. US antitrust
policy since approximately 19772 has adopted a n increasingly laissez-faire phi losophy,
one that has not always found tract ion with everyone either in t he US or abroad. For
example, US merger policy and judicia l interpretations of the antitr ust laws tend to
favor combinations, or at least to tolerate them to a far g reater extent than in an earl ier
era. Not surprisingly, at least some obser vers wonder if the recent economic crisis
might have been less severe had the United States imposed more stringent merger
controls to prevent banks and others from consolidating until they were “too big to
fail.”3 Still, for better or worse, US ant itrust law serves as a g uide to the rest of the
* University of San Fr ancisco School of Law, Presented 23 M arch 2012, University of Luxemb ourg.
1 D. Baker, “Revisiti ng History – What Have We Learned A bout Private Antitru st Enforcement at
We Would Recommend To Others?,” 16 Loyola Consumer Law Re v. 379 (2004).
2 See GTE Sylvania, 433 US 36 (1977).
3 J. Markham, “L essons For Competition L aw From e Economic Cr isis: e P rospect For Antitr ust
Responses To e Too-Big-To-Fail Phenomenon,” 16 Fordham J. Corp. & Fin . Law 262 (2011). See
also, Chri stine A Varney, Assistant Attorney G eneral, US Dept. of Justice, “Rema rks Prepared for
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