Joshua P. Davis

The Extraordinary Deterrence of Private Antitrust Enforcement: A Reply to Werden, Hammond, and Barnett

In 2011, we documented an extraordinary but usually overlooked fact: private antitrust enforcement deters a significant amount of anticompetitive conduct. Indeed the article showed that private enforcement probably deters even more anticompetitive conduct than the almost universally admired anticartel enforcement program of the United States Department of Justice. In a recent issue of The Antitrust Bulletin, Gregory J. Werden, Scott D. Hammond, and Belinda A. Barnett, members of the Justice Department staff, challenged our analysis, asserting that our comparison “is more misleading than informative.” However, their specific criticisms do not withstand scrutiny. In this reply, we explain why our original conclusions survive the efforts of Werden, Hammond, and Barnett to debunk them.

American Legal Realism and Practical Guidance

H.L.A. Hart’s well-known rejection of American Legal Realism turned in part on the idea that Realism lacked the resources to provide the sort of guidance that we might reasonably seek from a theory of law. Although Harts criticisms were widely regarded as devastating, in recent years American Legal Realism has undergone something of a renaissance. The principal architect of that renaissance is Brian Leiter, who has re-established Realism as an important and even indispensable approach to jurisprudence.In this chapter, our aim is to show how, despite its considerable attractions, Leiter’s brand of Legal Realism appears to be in much the same boat as its predecessors. That is, it cannot fulfill an important practical task for which we reasonably seek to develop a theory of law: providing an account of law as a potential source of guidance.Central to our discussion is the idea that there are diverse interests we might have in a theory of law. For example, one reason to develop an account of law is roughly descriptive. That is, we might seek to explain the nature of legal practices as such from an outsiders perspective and to illuminate how and why law functions as it does. We might even hope that such an account could enable us to predict judgments about cases. A different reason for developing a theory of law might be characterized as prescriptive. Among prescriptive approaches, one view of the function of legal theorizing is to offer guidance to those concerned to adhere to the law. A prescriptive account of that sort would, for example, help a judge decide what ruling the law requires in a given case.While Legal Realism may adequately serve our descriptive interests, it is far less clear that it adequately addresses a reasonable practical interest we can have for a theory of law, i.e., providing guidance for those interested in adhering to the law. We then consider whether this shortcoming is best understood as a serious internal flaw to Legal Realism or whether instead it shows something more general about the limitations of any unified approach to jurisprudence. We suggest the latter.