Private Participation in the Enforcement of Public Competition Laws

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British Institution of International & Comparative Law's Third Annual Conference on International and Comparative Competition Law: The Transatlantic Antitrust Dialogue

London, UK

Date:
By: 
William Kovacic, Former Chairman

William E. Kovacic
General Counsel

U.S. Federal Trade Commission

British Institution of International & Comparative Law
Third Annual Conference on International and Comparative Competition Law: The Transatlantic Antitrust Dialogue
London

May 15, 2003

The views presented here are the author's alone and not necessarily those of the U.S. Federal Trade Commission or any of its members. As revised, this paper will appear in Current Competition Law: Volume II (Mads Ardenas, Michael Hutchings & Philip Marsden eds. 2004).

Introduction

The decision to establish a system of public law entails choices about the design of institutions through which legislative and regulatory commands will be enforced. This presentation considers the possible consequences of engaging private parties in the enforcement of a competition law. Its observations and predictions are grounded in the experience of the United States, which has undertaken the world's most ambitious experiment with private participation in the implementation of a competition law.

I will address the topic in three parts. I will begin by presenting a taxonomy of enforcement functions that suggests where and how a system of law can engage the participation of private parties in different phases of the enforcement process. The second part identifies the factors that affect a company's incentive to comply with the law and relates these factors to the participation of private parties. The third part uses the concept of "equilibrating tendencies" to describe how courts and other institutions may respond to participation by private parties in the enforcement of a competition law. This section studies the interaction of private rights with public enforcement in the United States and identifies developments and issues that may arise as other jurisdictions expand private participation in the implementation of competition law.

The presentation emphasizes that there are strong interdependencies between the operation of private rights of action and public enforcement. This is a matter of interest not only for those who practice competition law in the United States, but increasingly for jurisdictions in which private rights are becoming, or promise to become, a more robust element of the enforcement picture. The dosage of private rights injected into the enforcement mix is crucial to the policy result. A person who takes two aspirin will cure a headache; a person who swallows the entire bottle will die. Thinking carefully about constitutes the right mix of public and private rights is crucial to introducing the private enforcement tool in any jurisdiction.

The presentation also underscores the importance of institutional design as a determinant of substantive policy results. In discussing competition law, there is a tendency for academics, enforcement officials, and practitioners to focus on developments in doctrine and policy. This emphasis can assign secondary significance to the institutional arrangements by which doctrine and policy take shape. A principal aim of this paper is to demonstrate how the design of institutions can influence substantive results.

I. A Taxonomy of Law Enforcement Functions

The process of enforcing any public law encompasses several discrete activities. Examined closely, the enforcement of a competition law has four elements:(1)

  • Monitoring the behavior of parties bound by the legal command and gathering data that facilitates the detection of violations of the law.
  • Prosecuting apparent violations.
  • Adjudicating guilt or innocence.
  • Imposing sanctions upon parties adjudged to have violated the law.

Our colloquial use of the term "law enforcement" packs together four functions that can be unbundled and studied separately. A basic issue that all systems of law must confront is how to assign responsibility for performing each function. For purposes of discussion, we can begin with a simple model in which a jurisdiction dedicates all enforcement functions exclusively to public authorities. In such a model, government institutions alone are responsible for monitoring behavior, prosecuting offenders, adjudicating liability, and punishing violators. Here the government is a law enforcement "monopolist."

The government monopolist model is not the only way to implement a legal command. A jurisdiction could use a mix of public and private participation to carry out the functions of law enforcement. In general terms, most legal systems do not give the state a monopoly over all law enforcement activities. In varying degrees, legal systems usually allow or encourage private parties to perform specific law enforcement functions.(2) As the following examples demonstrate, the notion that private parties would be involved in implementing the law is unremarkable in most jurisdictions:

  • any jurisdictions rely upon private parties to monitor behavior and gather evidence. It is common to involve private parties in the monitoring function either as volunteers or sometimes by providing rewards for information, especially in criminal enforcement.
  • n a number of legal systems private parties share authority with public bodies to prosecute violations of statutes. In some systems, private parties enjoy complete freedom to prosecute independently, without regard to the preferences of public authorities. In other instances, public authorities have a right to assume responsibility for a case initiated by a private party.
  • For some categories of legal disputes there has been a partial privatization of the adjudication function. Arbitration and mediation carried out by non-government instrumentalities are common means for resolving a variety of commercial and noncommercial disputes. In some legal systems, governments mandate or encourage this procedure, often under the rubric of "alternative dispute resolution," as being the appropriate mechanism for addressing certain classes of grievances.
  • There have been experiments with privatizing the administration of sanctions. Some jurisdictions have privatized the incarceration of individual violators by enlisting private parties to operate prisons. This is not a wholly common approach, but it further indicates how it is possible to engage private actors to perform all law enforcement functions.

To identify how a legal system could involve private parties in all law enforcement functions does not explain why a jurisdiction might choose to do so. In the context of competition law, we can consider why the participation of private parties might be desirable. The function of monitoring provides a starting point. Private participation in monitoring the behavior of actors subject to the law can provide more effective detection of violations when the private monitor is closer than a public inspector to the relevant information.(3) For example, a commercial purchaser of an industrial input whose price is being set by a covert cartel may be the first to observe that the suppliers of the input seem to be refusing to make sales in certain geographic areas - a characteristic of an illegal allocation of territories.

The prosecution function supplies a second illustration. As the academic literature on law enforcement points out, a system that relies exclusively on public enforcement may fail if the public prosecutor is slothful, corrupt, or lacks adequate resources.(4) Private rights of action can serve as an antidote to all of these conditions.

A decision to delegate law enforcement functions to private parties raises difficult issues of institutional design. The most important consideration is to ensure that the private party's interests in deciding to prosecute are aligned with those of society. This is not to suggest that the choice is between private parties whose fidelity to broader social interests is questionable on the one hand, and public prosecutors who perfectly and unerringly carry out the public will on the other hand. Compared to private litigants, public prosecutors can be constrained more completely by various instruments of political control (such as oversight by the legislature) if their behavior strays from the public's conception of what constitutes sound law enforcement. As I explain in more detail below, if the delegation of enforcement functions to private parties yields a serious perceived mismatch between social objectives and private enforcement behavior, the mismatch may generate distortions in the development of policy and doctrine that discourage the prosecution of sound cases.

As a final preliminary matter, there are a variety of ways to engage private participation with respect to any single function of law enforcement. Consider, once again, the monitoring function. One could rely solely upon private volunteers to step forward and tell public law enforcement bodies about apparent misconduct. The phenomenon of voluntary monitoring is common in many areas of the law, including competition policy. In the United States, the triggering event for criminal prosecution of a price-fixing cartel often is the voluntary submission of information by an employee of a cartel participant to the Department of Justice.(5)

Pure voluntarism is not the only model of private participation in the monitoring function. A jurisdiction can increase private monitoring by compensating informers in some fashion. Providing amnesty or leniency to culpable individuals or entities is one form of compensation that competition officials have used extensively in recent years to elicit informing.(6) The bargained-for-exchange in a leniency program goes roughly as follows: the informer supplies information about cartel wrongdoing in return for the prosecutor's promise to reduce the punishment that participation in such misconduct ordinarily would warrant. Leniency induces culpable individuals and enterprises to inform by providing a payment in the form of an abatement of sanctions.

It is also possible to structure private participation in prosecution in a variety of ways that increase or reduce the public prosecutor's control over the private participant. One model would give the public authority a right of first refusal to bring a case that the private party has brought to its attention. Another approach is to establish private rights of action, but to give the public authority the right to intervene in private suits and seek the dismissal of private suits that the public authority believes to be contrary to the public's interest. By contrast, one could make the private right of action more robust by allowing the private party to proceed regardless of the public prosecutor's preferences, and to permit the public prosecutor to participate as amicus curiae. Each approach described here gives the private actor different amounts of autonomy.

II. Shaping Incentives to Comply with the Law

A number of elements in the design of a law and its implementing institutions affect the incentives of individuals and firms to comply with the law. This is so whether the legal command in question sets a maximum speed for driving automobiles or forbids supplier cartels. The decision to comply is a function of five basic variables:

  • The substance of the legal command -- the specification of behavior that the law forbids or compels.
  • The standards of evidence that adjudication tribunals will apply to determine whether the plaintiff has proven a violation.
  • The likelihood that transgressions of the law will be detected.
  • The likelihood that observed transgressions will be prosecuted.
  • The severity of sanctions that will be imposed if guilt is established.

An adjustment of any one of these variables can alter the incentive to comply.(7) A jurisdiction that believes that compliance with a legal command is inadequate should ask what specific adjustments - to one variable or several variables - provide the best solution.

In competition law, the most noteworthy public enforcement innovations concerning cartels in the past 30 years have involved the detection of and sanctions for misconduct.(8) Many jurisdictions have increased the likelihood of detection by establishing or enhancing leniency programs or have boosted penalties for violators.(9) It is difficult to measure how these initiatives have affected actual compliance with anti-cartel laws. The model of compliance outlined above would predict that we should observe, in the coming years, a decrease in cartel behavior. How does the strengthening of private participation for any of these variables - for example, detection and prosecution - affect the incentive to comply with the law? Several possible consequences stand out. Private rights of action diminish, if not eliminate, the gate-keeping authority of public prosecutors and reduce their ability to control the development of policy by their selection of cases. Specifically, independent private rights to prosecute deny prosecutors the capacity to modulate the law's application by deciding to prosecute some violations more aggressively and prosecute other offenses less vigorously.

This has important implications for the analysis of nominal legal commands - either in the form of legislation or judicial precedent - whose wisdom is widely doubted but whose formal authority remains in effect. Robust private rights of action attenuate or eliminate the use of prosecutorial discretion to temper the implementation of a statute or judicially-crafted rule that experience or commentary have shown in some respect to be ill-advised. A public prosecutor might limit enforcement to a narrower subset of all possible cases, but the public prosecutor's decisions not to enforce may not bind private actors executing private rights of action. If the competition authority disfavors the nominal legal command, it must ask the legislature to adopt its preferred policy. The public competition agency may regard specific rules as anachronisms, but private parties remain free to enforce them, even with enthusiasm.

Second and perhaps most important, private rights of action magnify the role of the courts in implementing the law. In a world of multiple potential prosecutors, public and private, the courts become the chief vehicle for defining the law's content. The rulings of adjudicatory tribunals, not the administrative choices of public competition authorities, assume greater importance in shaping competition policy.

III. Equilibrating Tendencies: The Interaction of Public and Private Rights

There is a sobering lack of empirical data on how private participation in enforcement, including private rights to prosecute, have affected compliance with competition laws. There has been some informative theoretical work that uses the limited empirical data available to develop a better understanding of how private participation influences compliance. One major contribution involves what Stephen Calkins has called the concept of "equilibrating tendencies."(10) The basic intuition of this concept is that the government institutions responsible for implementing competition policy, such as enforcement authorities and courts, will use means within their control to correct perceived imbalances in the competition policy system.

The judiciary's role in deciding antitrust disputes provides several possible examples of equilibrating tendencies at work. A court might perceive that private parties - especially plaintiffs who are the defendant's competitors - too often challenge behavior that is benign or procompetitive. Or a court might fear that the U.S. statutory requirement that successful private plaintiffs be awarded treble damages runs a risk of over-deterrence. A court might seek to correct such perceived infirmities in the antitrust system by recourse to means directly within its control - namely, by modifying doctrine governing liability standards or by devising special doctrinal tests to evaluate the worthiness of private claims.

The existence of equilibrating tendencies has major implications for how a jurisdiction might design a competition system and how a chosen competition system will evolve over time. Experience in the United States illuminates some of these implications. Of the world's competition regimes, the U.S. system provides uniquely strong private rights of action.(11) The private right to prosecute antitrust claims in the United States is wholly independent of control by government prosecutors. Private parties need not ask the government authorities for permission to bring cases, nor do the government bodies have a right of first refusal to assume responsibility for prosecuting a potential matter identified by a private litigant.

The remedies available for successful private claimants are formidable. The prevailing private litigant is entitled to equitable relief and to treble damages. Trebling is mandatory, as the court lacks discretion to award single damages or a multiple less than three if the court believes the defendant's conduct, while culpable, was not egregious. The U.S. statutes entitle prevailing plaintiffs to recover costs and reasonable attorneys fees. The fee shifting is asymmetric; a successful defendant cannot recover its legal fees from the plaintiff. Compared to other jurisdictions, the rules of procedure in the U.S. courts more readily permit the prosecution of private antitrust cases on behalf of entire classes of injured parties. The relatively greater likelihood of obtaining the certification of a class in the United States can strengthen the position and magnify the negotiation power of the plaintiff in private suits.

Nothing compels a nation that is considering the establishment or enhancement of private rights of action to imitate exactly the U.S. system in competition matters. For example, a jurisdiction could recognize private rights of action without imposing mandatory treble damages, it could establish symmetrical fee shifting, or it could require plaintiffs to satisfy more demanding standards when seeking to obtain certification for a class action.

Whatever the exact design of the private right of action, the jurisdiction must keep in mind the possible interaction between the operation of private rights of action and public law enforcement. I would advance the following hypothesis: where courts fear that the private party incentives to sue are misaligned with the larger interests of the public (put another way, when the courts do not trust the private plaintiff as much as they trust a public prosecutor) or they fear that the remedial scheme (e.g., mandatory treble damages for all offenses) deters legitimate business conduct excessively, the courts will use measures within their control to correct the perceived imbalance. The courts will "equilibrate" the antitrust system in one of three ways. Judges will:

  • Construct doctrinal tests under the rubric of "standing" or "injury" that make it harder for the private party to pursue its case; or
  • Adjust evidentiary requirements that must be satisfied to prove violations; or
  • Alter substantive liability rules in ways that make it more difficult for the plaintiff to establish the defendant's liability.

The first of these methods only governs suits by private plaintiffs. Of particular significance to public enforcement authorities is the possibility that the courts, in using the second and third measures listed above, will endorse principles that apply to the resolution of all antitrust disputes, regardless of the plaintiff's identify. In the course of making adjustments in evidentiary tests or substantive standards to correct for perceived infirmities in private rights of action, courts may create rules of general applicability that encumber public prosecutors as much as private litigants.

I cannot offer a rigorous proof for the proposition, but I believe the hypothesis helps explain the modern evolution of U.S. antitrust doctrine. Since the mid-1970s, the U.S. courts have established relatively demanding standards that private plaintiffs must satisfy to demonstrate that they have standing to press antitrust claims and have suffered "antitrust injury."(12) In this period, the courts have endorsed evidentiary tests that make it more difficult for plaintiffs to prove concerted action involving allegations of unlawful horizontal and vertical contractual restraints.(13) With some variation, courts also have given dominant firms comparatively greater freedom to choose pricing and product development strategies.(14)

Collectively, these developments have narrowed the scope of the U.S. antitrust system. Most of the critical judicial decisions in this evolution of doctrine have involved private plaintiffs pressing treble damage claims. Perhaps the most interesting area to consider the possible interaction between the private right of action and the development of doctrine involves the fields of monopolization and attempted monopolization law. Litigation involving exclusionary conduct by IBM provides a useful illustration.(15) In the late 1960s, the Department of Justice initiated an abuse of dominance case that sought, among other ends, to break IBM up into several new companies. By 1975, roughly 45 private suits had been filed against IBM alleging unlawful exclusionary conduct and seeking treble damages against IBM. The sum of all damage claims in the private cases exceeded $4 billion - a considerable amount at the time.

My intuition is that courts reacted to the private cases with apprehension and were ill at ease with the possibility that a finding of illegal monopolization would trigger the imposition of massive damage awards against IBM. The courts in these matters could not refuse to treble damages if they found liability, but they could interpret the law in ways that resulted in a finding of no liability. IBM paid settlements to a small number of the private claimants, but it achieved vindication in most of the private cases. The results in the private damage cases against IBM and several other leading U.S. industrial firms in this period imbued U.S. monopolization doctrine with analytical approaches and conceptual perspectives that viewed intervention skeptically.

My hypothesis about the American competition policy experience is that U.S. antitrust doctrine would have taken a somewhat different path had there been no private rights of action, or if the damage remedy in private actions had been less potent - for example, limiting recovery to actual damages, or permitting trebling only for violations of per se offenses such as horizontal price-fixing. Specifically, U.S. antitrust doctrine would have assumed a more intervention-oriented character if the power to enforce the American competition statutes were vested exclusively in public enforcement authorities, or if the private right of action had been circumscribed in one or more of the ways indicated above.

This raises the question of what will happen in the European Union (EU) and its Member States if private rights of action grow more robust. My tentative prediction is that an expansion of private rights could lead judicial tribunals to adjust doctrine in ways that shrink the zone of liability. For example, an expansion in private rights of action could cause EU abuse of dominance doctrine to converge more closely upon U.S. liability standards governing monopolization. A further, more certain impact of decentralizing the power to prosecute to private parties is that public prosecutors will lose some of the control they now enjoy over the development of doctrine and policy.

Another respect in which expanded private rights of action might alter the current equilibrium of EU competition policy involves the use of leniency to encourage cartel participants to reveal unlawful collusive schemes. We have seen in the United States that private treble damage liability interacts significantly with the Justice Department's leniency program. A cartel member which sells in the U.S. market understands that invoking the leniency process sets in motion a chain of events that leads to the public revelation of the firm's misconduct. This provides an unmistakable aiming point private treble damage litigants.(16)

At a minimum, one can ask whether the leniency program of a jurisdiction becomes less effective as an anti-cartel device as private rights grow more powerful and the potential damage exposure from private suits increases. If the answer is "yes" it is still not clear that a jurisdiction is necessarily worse off, on balance, if it enhances private rights of action. A central aim of competition policy is to achieve optimal deterrence. Augmenting leniency mechanisms and strengthening private rights of action are alternative means for increasing a firm's incentives to comply with a prohibition against cartels. Leniency increases the probability that misconduct will be detected, and strong private rights to recover damages increase the likelihood that misconduct will be prosecuted and, more important, raise the severity of the sanctions to be imposed upon wrongdoers beyond any punishment obtained by the public prosecutor. To date, no researcher has assembled the data to show which strategy - increasing detection or boosting sanctions - has the greater effect in spurring compliance.

An expansion of private rights in the EU and the Member States also is likely to alter the way in which public competition agencies spend their resources. Competition agencies may need to spend more time preparing amicus curiae submissions in private cases to guide the courts in their treatment of substantive doctrinal issues and, in some instances, the proper design of remedies. Providing the competition agency's views about substantive doctrine is particularly important where the court may be tempted to forestall overreaching by private plaintiffs by toughening doctrinal standards that will govern all future cases, public and private alike.

Conclusion: The Future of Private Participation in Competition Law Enforcement

Private rights of action seem likely to assume greater importance in the future development of competition policy. Roughly 30 jurisdictions today have private rights of action, and the number probably will grow. The exercise of private rights of action in any single jurisdiction likely will be facilitated by the creation of networks of attorneys skilled in the prosecution of private antitrust claims. Among other activities, such networks will assist in transferring litigation know-how developed in jurisdictions, such as the United States, which have accumulated much experience with private rights. Over time, the networks will assist in forming coalitions of private counsel who will seek to apply private rights of action to rectify individual episodes of misconduct (such as illegal cartels) in a host of countries at any one time.

Equally significant is the possible expansion of private participation in the detection of competition law violations. A likely foundation for this development will be an innovation tested extensively since the mid-1980s in the United States to punish fraud against the government. The device is the qui tam mechanism of the U.S. Civil False Claims Act.(17) The qui tam mechanism offers substantial monetary rewards for individuals who inform the Department of Justice of conduct, such as the violation of procurement laws, that defrauds the government of money. If the Justice Department successfully prosecutes the alleged misconduct, the informer is entitled to as much as 25% of all sums the government recovers. If the Justice Department chooses not to prosecute, and the informer proceeds with her own suit, the maximum reward to the inform rises to as much as 30% of the funds recovered.

Congress adopted the False Claims Act and its qui tam mechanism in 1863 and augmented its powers in 1986. From 1986 through 2000, the U.S. government recovered a total of $3.5 billion in matters brought to its attention by qui tam informers. Of that amount, informers have received a total of over $500 million rewards, and a considerable number of informers have received rewards in the millions of dollars.

Competition policy systems eventually could - and, I have argued elsewhere, should(18) - create variants of the qui tam mechanism. As applied in competition law, such a mechanism would give a substantial monetary reward to individuals who provide information leading to the successful prosecution of a cartel. The acceptability in any jurisdiction of such an approach depends heavily on its consistency with existing social and political norms.(19) For a variety of reasons, some jurisdictions may decline to pay informers a bounty to report cartel misconduct.

The absorption of the qui tam technique into competition policy may be a slow growth, but it is not inconceivable. Twenty years ago, one would not readily have predicted that jurisdictions outside the United States would embrace the American approach of treating cartel offenses as crimes. Nor was it inevitable that most competition policy systems would come to regard cartels as worthy of severe civil sanctions. If nations are willing to use a reduction in punishment (leniency) to "pay" cartel participants to reveal unlawful collusion, it is not a long conceptual step to "pay" informers with cash to do the same.

Whatever the actual path of innovation concerning public and private rights may be, modern experience with competition policy teaches an important lesson about law enforcement reforms. Adjustments in any single aspect of the enforcement mechanism send ripples through the entire system for implementing the law. There are strong interdependencies between public rights and private rights, and between individual variables of the enforcement equation, even when the government alone performs all or most enforcement functions. The interdependencies put a premium on efforts to study and evaluate how each change in the system affects the operation of the entire enforcement mechanism. Modern competition policy experience is a history of both intended and unintended consequences, and the wisdom of making any single enforcement reform requires an appreciation of how the change will affect the larger process of implementing the law.

A benefit of the multiplicity in the global competition system is that individual jurisdictions need not face choices about institutional design in a vacuum. In many instances, the experience of other countries can inform decisions about such questions as whether to create private rights of action, to denominate certain antitrust offenses as crimes, or to offer leniency or other rewards to induce the revelation of misconduct. For all its considerable complexity, the global competition policy environment offers unequaled opportunity for jurisdictions to design implementing institutions on the basis of informative comparative study rather than pure theory or mere guesswork.

Endnotes:

1. This taxonomy is derived from the framework presented in Andrew I. Gavil, William E. Kovacic & Jonathan B. Baker , Antitrust Law in Perspective: Cases, Concepts and Problems in Competition Policy 923-30 (2002).

2. The possibilities for having private parties perform various law enforcement functions are examined in William E. Kovacic, Private Monitoring and Antitrust Enforcement: Paying Informants to Reveal Cartels, 69 George Washington Law Review 766 (2001).

3. The advantages and disadvantages of relying on private parties to act as monitors in law enforcement are examined in William E. Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes, 9 Administrative Law Journal of the American University 461, 486-91 (1995).

4. For a more detailed discussion of the rationales for supplementing public enforcement with private rights of action, see William E. Kovacic, Whistleblower Bounty Lawsuits as Monitoring Devices in Government Contracting, 29 Loyola of Los Angeles Law Review 1799, 1822-24 (1996).

5. The motives for informing range from the sacred to the profane. Sometimes moral outrage induces the volunteer to act. In one recurring scenario, a sales representative is told by his management that he may not sell a specific product to a longstanding customer because the customer recently has been "assigned" to one of the company's rivals. Angered by his sense that his company is betraying a valued customer, the salesperson decides to inform the Justice Department. In other instances volunteers supply information for less edifying reasons. The Justice Department's successful prosecution of the food additives cartel was triggered by a tip from an Archer Daniels Midland (ADM) executive (Mark Whitacre) who informed the government of his ADM's participation in a cartel as a means of diverting attention away from his own embezzlement of funds from the company. The investigation and prosecution of the food additives cartel are recounted in Kurt Eichenwald, The Informant (2000).

6. The modern trend toward the development of more robust leniency programs is documented and analyzed in Christopher Harding & Julian Joshua, Regulating Cartels in Europe: A Study of Legal Control of Corporate Delinquency 209-28 (2003); Bruce H. Kobayashi, Antitrust, Agency, and Amnesty: An Economic Analysis of the Criminal Enforcement of the Antitrust Laws Against Corporations, 69 George Washington Law Review 715 (2001); Gary R. Spratling, Detection and Deterrence: Rewarding Informants for Reporting Violations, 69 George Washington Law Review 798 (2001).

7. In presenting this framework of compliance-related variables I have not overlooked the importance of social norms and ethical standards in motivating individuals and enterprises to obey the law. In this discussion, I make the simplifying assumption that the existing formal legal commands reflect, at least generally, those norms. I also recognize that the choices of law enforcement officials over time influence social understandings about the norms of conduct that should govern business behavior. See William E. Kovacic, The Modern Evolution of U.S. Competition Policy Enforcement Norms, 71 Antitrust Law Journal 377 (2003).

8. See Kovacic, supra note 2, at 784-92 (describing modern improvements in detection techniques and enhancement in sanctions in United States).

9. See Harding & Joshua, supra note 6, at 209-269 (describing European experience); Donald I. Klawiter, After the Deluge: The Powerful Effect of Substantial Criminal Fines, Imprisonment, and Other Penalties in the Age of International Cartel Enforcement, 69 George Washington Law Review 745 (2001) (describing U.S. experience).

10. This concept is introduced in Stephen Calkins, Summary Judgment, Motions to Dismiss, and Other Examples of Equilibrating Tendencies in the Antitrust System, 74 Georgetown Law Journal 1065 (1986).

11. The dimensions of the U.S. system of private rights of action in antitrust matters are spelled out in ABA Section of Antitrust Law, I Antitrust Law Developments 835-1028 (5th ed. 2002).

12. These requirements are described in ABA Section of Antitrust Law, supra note 11, at 838-69.

13. See Gavil et al., supra note 1, at 370-73 (describing Supreme Court's establishment of more demanding standards for proving agreement in Sherman Act restraint of trade cases).

14. See William E. Kovacic & Carl Shapiro, Antitrust Policy: A Century of Economic and Legal Thinking, 14 Journal of Economic Perspectives 43, 54-58 (2000) (describing modern developments in U.S. doctrine governing conduct of dominant firms).

15. For a discussion of the government and private suits against IBM in the late 1960s and in the 1970s, see William E. Kovacic, Designing Antitrust Remedies for Dominant Firm Misconduct, 31 Connecticut Law Review 1285, 1289-90 (1999).

16. In the United States, the private plaintiffs' antitrust bar today often shoots skilfully. In an earlier time, there was a tendency to liken antitrust litigation between plaintiffs' bar and the defendants' bar as a struggle between David and Goliath. Notable improvements in the skill, tactics, and financial strength of the plaintiffs' bar has rendered the contest a match between Goliath and Goliath.

17. This mechanism is described in detail in Kovacic, supra note 4, at 1809-20.

18. This proposal is presented in Kovacic, supra note 2, at 792-97.

19. The importance of national culture, political traditions, and legal structures in determining the appropriate institutional framework for a competition policy system is analyzed in William E. Kovacic, Institutional Foundations for Economic Law Reform in Transition Economies: The Case of Competition Policy and Antitrust Enforcement, 77 Chicago-Kent Law Review 265 (2001).