An Enduring Antitrust Divide Across the Atlantic Over Whether to Incarcerate Conspirators and When to Restrain Abusive Monopolists

"America and Europe are generally going in significantly different directions in two fundamental areas of competition law—cartels and monopolies—based on diverse public concerns, legal processes and economic assumptions. A clear majority of US politicians and judges support the antitrust enforcers’ enthusiasm for sending individual cartel conspirators to the penitentiary in order to increase deterrence, while most European politicians, criminal prosecutors and judges seem generally reluctant about embarking on such an effort. Meanwhile, European competition authorities and their political supporters are committed to using competition law to curb abusive and exclusionary activity conduct by dominant firms, while the American consensus and enforcement are more cautious because of concerns about th e potential impact of anti-monopoly enforcement on risk-taking, innovation and investment by aggressive competitors. This antitrust divergence is important and has both positive and negative dimensions. Its practical consequences are magnified today because both enterprises and enforcers operate in a global economy—where actions and their competitive effects flow across oceans and borders with increasing ease.

My purpose here is to examine the causes of the present reality, to predict why it is likely to continue and to discuss some potentially positive opportunities for improved antitrust enforcement."