In June 2014, the U.S. Sentencing Commission proposed a list of priorities for the Sentencing Guidelines amendment cycle ending May 1, 2015.1 This proposal calls for a study of antitrust offenses and for examination of the penalty provisions in Section 2R1.1 of the U.S. Sentencing Guidelines (the antitrust sentencing guidelines) that relate to bid-rigging, price-fixing, and market allocation agreements among competitors.
A debate about the sufficiency of the antitrust sentencing guidelines for achieving optimal cartel deterrence has percolated among academics since at least 2005.2 Scholars have weighed in on various aspects of antitrust sentencing, from the implications of the prevailing Chicago-school goal of “optimal deterrence,”3 to the appropriate presumption for cartel gains,4 to exhortations for paradigmatic shifts in how governments punish cartel behavior.5 Unsurprisingly then, the presence of an antitrust priority in the commission’s proposal inspired several thoughtful public comments on possible reforms.
