Wednesday, August 14, 2013
Jennifer A. Quaid (University of Ottawa - Civil Law Section) has posted Making Sense of the Shift in Paradigm on Cartel Enforcement: The Case for Applying a Desert Perspective (McGill Law Journal, Vol. 58, No. 1, 2012) on SSRN. Here is the abstract:
Soon after the coming into force of changes to the criminal provisions in the Competition Act, the commissioner of competition signalled that cartel enforcement would start to reflect a new mindset, one that treats cartels as truly criminal. But while the impetus for this shift in paradigm is well-intentioned — to give effect to a stronger criminal law mandate following the amendments — it is poorly explained, because its defenders continue to refer to the predominant deterrence rationale used in competition law, even though applying a harm-based view of crime and punishment to cartels fails to explain why criminal enforcement is needed.
I believe that applying a desert perspective offers a compelling alternative explanation for this shift toward treating cartels as truly criminal. Drawing on the work of Arthur Ripstein, I offer an account of cartel enforcement that focuses on the inherently wrongful disregard for competition that characterizes cartels. I argue that seeing cartels as a particularly serious misuse of the competitive system, one that is so fundamentally at odds with the notion of a competitive marketplace that it cannot be tolerated, is what justifies recourse to the consistent and uniquely public response of the criminal law. Seen in this light, bringing a more criminal law-oriented mindset to bear on cartel enforcement makes sense in way that this shift in paradigm does not when justified in deterrence terms.