The Evolution of U.S. Cartel Enforcement

Antitrust as a whole was transformed due in large part to the influential writings of Bork in The Antitrust Paradox (1978). This paper examines what Bork said and did not say about cartel enforcement and offers an examination of how actual the structure of cartel enforcement played out relative to what Bork advocated. To provide some perspective on Bork’s view of cartel enforcement, we compare his views to those of the other major influential antitrust book of the time by Posner (1976). We identify three distinctive stages of cartel enforcement. Stage one is characterized by low number of cartels prosecuted along with low fines and jail terms. Consistent with Bork’s vision, Stage two demonstrates a significant increase in cartels prosecuted, although fines and jail terms remain low. Stage three (the current stage) exemplifies a decline in the number of cartels prosecuted relative to stage two, but with dramatic increases in monetary fines and jail terms