Vanderbilt Law Review

First Page



Antitrust violations traditionally have been viewed as statutory torts,' yet tort principles of damage allocation, including contribution and claim reduction, have not been extended by analogy in the federal courts to antitrust cases. Moreover, the principle of joint and several liability, made applicable to antitrust conspirators by judicial fiat some eighty years ago, has gone largely unchallenged. While the federal antitrust laws are nearly a century old, the damage allocation debate is of recent vintage, emerging in the wake of the Electrical Equipment Cases, when the private treble damage remedy came into its own.

The recent emergence of contribution and claim reduction as issues is not surprising. Scholarly debate in the antitrust field historically has involved liability issues and did not focus seriously on remedies until the 1970s. The catalysts for the current debate are:first, the seeming anomaly of a no-contribution rule in light of the acceptance of damage allocation principles; and second, the perceived unfairness of making relatively minor actors in a conspiratorial scheme solely liable for amounts that are disproportionate to the degree of wrong doing.

Recently the contest has shifted from the judicial arena to the legislative arena. In Texas Industries, Inc. v. Radcliff Materials,Inc." the Supreme Court held that conspiring co-defendants have neither a statutory nor a common-law right of contribution in anti-trust cases. The Court also has declined to review lower court rulings denying claim reduction. Rather than ending the debate,however, these decisions have only added fuel to the fire, in part because of then Chief Justice Burger's suggestion that contribution is a matter for Congress, not the courts. The focus of the controversy thus has shifted from what "is" to what "ought to be."