Delivering Remedies: The Role of the States in Antitrust Enforcement

Posted: 19 Dec 2002

See all articles by Harry First

Harry First

New York University School of Law

Abstract

The question of the proper role of the states in antitrust enforcement has received renewed attention following criticism of state antitrust enforcement by Judge Richard Posner. This article offers a response to the Posner critique and advances a positive case for state antitrust enforcement.

The article reviews the current legal bases for state antitrust jurisdiction, both under federal and state antitrust law, and the current record of state antitrust enforcement, using New York state antitrust enforcement as an example of the scope and effects of state antitrust enforcement. Data are presented for enforcement during the two-year period, 1999 to 2001, showing the types of cases brought and the extent of recoveries (multistate recoveries of nearly $500 million, of which nearly $35 million was recovered on behalf of consumers in New York State).

Posner argues that states can only free ride on federal enforcement efforts; that states are too subject to interest-group influence; and that state lawyers are not competent. The article responds: much enforcement is done by the states themselves; cooperative state-federal enforcement augments antitrust enforcement resources; interest-group influence has not occurred; and the enforcement results shown in the data demonstrate that the states are quite competent.

The article concludes by reviewing three areas in which a positive case for state enforcement can be made: participating in cases where a knowledge of local conditions provides state enforcers with a comparative advantage over federal enforcers; the addition of a potentially different policy perspective in federal-state efforts; and the exercise of the parens patriae power to obtain monetary recoveries on behalf of a state's consumers, an area that historically has been the focus of the states' efforts and neglected by federal enforcers.

Suggested Citation

First, Harry, Delivering Remedies: The Role of the States in Antitrust Enforcement. Available at SSRN: https://ssrn.com/abstract=353740

Harry First (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6211 (Phone)
212-995-4760 (Fax)

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