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Re-designing the American Antitrust Machine Part I: Treble Damages, Contribution and Claim Reduction

John DeQ. Briggs, Chapter in "Judge Douglas H. Ginsburg Liber Americorum", Concurrences, Forthcoming, January 2018

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This is the first in a contemplated series of articles, and eventually a book, about “the American Antitrust Machine” and how it might or should be reconsidered if it were built from the ground up in order to serve agreed competition policies with enforcement machinery, both public and private, designed to implement such policies in a complementary and coherent way. Most of the economies in the world, both developed and developing, have established or redesigned their competition policies and associate enforcement machinery just since the onset of the 21st-century. The United States has felt no need to do so and the idea of doing so has never been seriously advanced.
This Part I, addresses several singular features of the private damages recovery machinery in United States: treble damages, joint and several liability, contribution, and claim reduction. These topics have been the source of multiple articles and proposals over the years, but almost always in the somewhat narrow context of dealing with them in largely unconnected silos. None of the writings on this subject that the author has been able to uncover arise in the context of rethinking the entire corpus of American antitrust law and policy. Accordingly, this article should not be viewed as a stand-alone proposal, but part of a far broader mosaic of change, the elements of which are alluded to herein, but which are not as yet fully developed. Therefore, the proposals advanced in this paper are subject to change once the weaving of the larger fabric is underway and other voices are heard.

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