Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Bork on Private Enforcement

with 4 comments

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A refreshing – and couterintuitive – quote from Judge Bork as the EU is heading towards increased private enforcement:

Much of the improvement in antitrust policy over the past decade and a half has come not from the courts but from the enforcement agencies. If the courts abandon economic rigor, only those agencies can preserve the rationality of the law, and then only partially. Private plaintiffs and their lawyers have rather less interest in rational rules than they do in triple damages and contingency fees. Expert economic witnesses can be found to support any theory. Without firm judicial control, private actions make antitrust “policy” ad hoc, as trials become ad hominem. Much more could be said about the devastating unfairness and anticompetitive consequences of much private antitrust litigation, but that is outside the scope of this book. In antitrust, it is possible to think the European Community as has wisely not followed the american example but has instead centralized all enforcement in a single government agency” (The Antitrust Paradox, Epilogue p.439).

In brief, Bork accuses the US courts system of the state of theoretical confusion in which antitrust law was until the 1980s. And he says that agencies often promote better substantive standards (though they select those most advantageous to them) than courts who hear cases brought randomly by private parties with evolving business interests.

We surely can  agree with Bork – as we have endlessly advocated on this blog – that with prospects of increased private enforcement in the EU it becomes compelling to (i) induce judges to delve more into economic analysis; (ii) require a very stringent system of judicial review.

Written by Nicolas Petit

10 May 2013 at 3:35 pm

4 Responses

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  1. […] A reflection from Judge Bork on the wisdom of private antitrust enforcement in Europe. […]

  2. I like to government agency, but for better protection of fundamental rights, I would prefer the European Commission to take the cases to a specialised(?) EU court.

    Pal Szilagyi

    11 May 2013 at 5:43 pm

  3. I think Bork would not agree with your conclusion (i) – see the cynical sentence about economic experts…more economic analysis could very well lead to further uncertainty and unpredictability…

    Asimo

    11 May 2013 at 6:46 pm

  4. Asimo, my reading is that in this § Bork complains of the dangerous role of private economic experts hired by the parties.

    But on a more general level (in the rest of his book), Bork’s book is a love declaration towards more economics in the system, incl. in the courts : “The reasons for the inadequate performance of the legal institutions that shape AT policy is a complex topic. No single institution is wholly responsible, but perhaps it can be said that the factor common to the performance of all of them was, and is, the absence of a rudimentary understanding of market economics. Few of the actors in the process, however, seemed to display any lackof self confidence in economic argument (p.409)”.

    Nicolas Petit

    14 May 2013 at 12:41 pm


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