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16 Loy. Consumer L. Rev. 303 (2003-2004)


Lately, much attention has been given to the scope of the antitrust laws. This discussion has two overlapping components: (1) consideration of the substantive doctrines specifying the behavioral or structural changes that are or are not unlawful and the appropriate methodology; and (2) analysis for making those determinations with attention given to the appropriate vehicles for enforcing the antitrust laws. Some argue that the antitrust laws proscribe activities that are either pro-competitive or at worst benign. Further, they assert that the multiplicity of antitrust enforcers and enforcement devices has resulted in undue burdens, including excessive cost, time delay, and forestalling of legitimate, procompetitive behavior.

The discussion of this second component of antitrust enforcement involves two discrete, but overlapping, inquiries. The first, at what might be described as the macro-level, is whether the aggregate of enforcement activities is beneficial or deleterious. The second inquiry, which inevitably dovetails with the first, looks rather at the distribution of antitrust enforcement. Among the many questions raised here are: (1) whether we have correctly allocated authority to the various governmental and private enforcers; (2) whether we have the correct balance of enforcement through litigation or other compliance mechanisms; (3) whether non-American parties (both private and governmental) play an appropriate role in antitrust enforcement; and (4) whether the range of remedies invoked in the event of antitrust violations appropriately maximizes consumer welfare. These questions are the focus of this article.


Reprinted with permission of Loyola Consumer Law Review.



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