The Incoherence of Punishment in Antitrust

Antitrust has a complex set of criminal and civil remedies enforced by a multiplicity of public and private actors. Antitrust remedies are frequently analyzed from the point of view of deterrence and compensation, but only rarely from the perspective of punishment. The few debates about punishment concern whether defendants are over-punished or under-punished. This Article analyzes a different question about punishment in antitrust—namely that total punishment in any given antitrust case varies dramatically for offenses with identical or similar status under the law and there is no a prioi way to predict punishment levels for a particular case or a particular defendant.

This is the real but overlooked incoherence of antitrust punishment which has real consequences both for antitrust and for tort scholars looking to antitrust as a model of certainty in questions of punishment and damages.