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Academic Articles Awards > Concerted Practices

A Proposal for a Structural Remedy for Illegal Collusion

Joseph E. Harrington Jr, Antitrust Law Journal, Forthcoming

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Readers’ vote will close on February 9, 2018. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 10, 2018.

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It is proposed that competition authorities use a structural remedy for some convicted cartels. The remedy would have cartel member(s) sell productive assets such as capacity to other firms for the purpose of making the market more competitive. Compared to existing corporate penalties of government fines and customer damages, divestiture is more of a deterrent under certain conditions, can be more effective at compensating those consumers harmed, and, most importantly, is corrective by reducing the likelihood of recidivism and preventing post-cartel tacit collusion. The paper offers some guidance for the use of divestitures, examines the legal basis for such a remedy, and discusses several cases for which a structural remedy may have been feasible and appropriate.

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