Document Type
Article
Publication Title
Oregon Law Review
Publication Date
2005
Volume
84
First Page
147
Abstract
(Excerpt)
In the 115-year history of federal antitrust law, much has been written about substantive liability standards. Comparatively little has been written about antitrust remedies. This inattentiveness to remedy was underscored by the Microsoft case wherein the Antitrust Division, having successfully adjudicated Microsoft a monopolist, scrambled to fashion an appropriate remedy, first seeking to break up Microsoft and ultimately reversing itself and settling for a conduct decree. Putting aside the question of whether the relief in Microsoft was adequate, the fact is that the case law on equitable remedies in antitrust is sparse and dated, leaving critics to question whether the antitrust laws are sufficiently nimble to meet the needs of a fast-paced, high-tech economy.
Moreover, changes in enforcement priorities at the Antitrust Division, which have led to a heavy emphasis on criminal enforcement, have rekindled the debate over the continuing need for mandatory treble damages in private civil actions. The right of private action, coupled with more aggressive antitrust enforcement by state agencies and foreign governments, has led critics to argue that antitrust enforcement in the United States is unduly punitive and may overdeter by chilling potentially procompetitive behavior. Finally, the relatively recent spate of multiparty, multiforum, multijusrisdictional antitrust actions has led some, including Congress, to question whether current procedures for handling antitrust litigation are fair and adequate.
This Article will: (1) describe the current antitrust enforcement picture; (2) identify problems with the present state of enforcement; and (3) propose changes, both substantive and procedural, that will improve overall antitrust enforcement.
Comments
Available at: https://scholarsbank.uoregon.edu/xmlui/handle/1794/4643