Publication of the week: Stranger in a Strange Land: An Outsider's View of Antitrust and the Courts

 

By Neil Komesar, published in 41 Loyola University Chicago L.J. 443 2009-2010. For those with HeinOnline access, here is the link.

 

This weeks publication is one of the few examples where a scholarly paper is both educational and enjoyable to read.  Neil Komesar uses his comparative institutional approach to assess whether (private) court or agency enforcement of (US) competition law would be preferrable. He argues that agency enforcement should be preferred to the (in the US more common) private enforcement, because the Court system has very little resources to devote to big and complicated antitrust ligitation. Judges are furthermore not usually experts on competition law and thus liable to make many mistakes. While competition agencies might be easier to influence than the judiciary, Komesar holds that the larger resources and the expertise held by competition agencies outweigh the possible bias. He even holds that competition agencies appear to avoid bias by hearing both sides to a case.

While I agree with Komesar's analysis for the most part, I am a bit less certain that bias is not a problem in competition agencies. While this may be true for the US (I'm really not expert enough to say), in the EU, the Commission is frequently a party to cases as well as the prosecutor in cases, which makes avoiding bias more difficult. The Commission has tried to avoid bias by creating the role of the hearing officer, but this role seems to be too small to disperse doubts about bias.

In any case, Komesar's article, and indeed his books, are a great read for anyone interested in competition law and/or  institutional law & economics!