Monday, August 18, 2008
Posted by D. Daniel Sokol
Harry First of NYU Law School offers his thoughts on Making the Best of a Good Situation: Modernizing State Antitrust Enforcement.
ABSTRACT: In 2001 Congressman F. James Sensenbrenner introduced the bill that would eventually result in the Antitrust Modernization Commission. One of the three areas he suggested for review was the role of state attorneys general in enforcing antitrust laws, a concern prompted by the states' efforts in the Microsoft litigation. The AMC devoted substantial effort to this area, eventually adopting eight recommendations relating to state enforcement. None of these recommendations, however, proposed any real change in the status quo.
In this paper I first review the options that the AMC considered. I argue that the Commission did not recommend cutting back state enforcement mainly because, after examining the data, it could find little indication that state enforcement has been problematic. I next argue that the modernization of state enforcement requires an effort to improve its effectiveness, something that was apparently not on the AMC's agenda. In this part of the paper I review some of the benefits of state enforcement and suggest that the effectiveness of state enforcement could be improved through greater centralization of the enforcement effort, more enforcement planning, and increased financial resources. The increased financial resources could be obtained through an amendment to Section 4E of the Clayton Act, requiring courts to distribute to the states, for use in their enforcement efforts, part of the monetary recovery in parens patriae cases.