Thursday, December 22, 2016
Joshua D. Wright, George Mason University - Antonin Scalia Law School, Faculty and Douglas H. Ginsburg, U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty discuss The Costs and Benefits of Antitrust Consents.
ABSTRACT: Over the last three decades, the United States Federal Trade Commission and the Antitrust Division of the Department of Justice have undergone a dramatic shift toward greater reliance upon consent decrees rather than litigation to resolve antitrust disputes. As many national competition agencies examine the desirability of adopting a similar approach, we focus upon identifying and analyzing the costs and benefits associated with a marginal shift along the continuum from an enforcement model of agency behavior to a regulatory regime. We rely upon the U.S. experience to substantiate our claim that the costs associated with such a marginal shift toward the regulatory model, including the potential distortion in the development of substantive antitrust doctrine, are often under appreciated and discernable only in the long run. We acknowledge that consent decrees can and should be a part of an antitrust agency’s toolkit for resolving antitrust disputes. We contend merely that a full accounting of the benefits and costs of reliance upon consent decrees is necessary to inform this important strategic decision for competition agencies.