State Action in Comparative Context: What if Parker v. Brown Were Italian?
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Description
This is a moral tale. Europe, the hero of the tale, is not an unblemished hero; and the United States, the laggard, is not always the comparative laggard. The message, however, is not in the details. The message is: State action that harms competition and trade is a fraught problem. It implicates federalism, sovereignty, and the problem that Europe calls subsidiarity: if a task can be done as well at a lower level of government it should be done at the lower level. Conversely, if the multitude of lower-level actors (nations) have incentives to undermine the common good of the community, then responsibility is properly placed at a federal level. Moreover, in such case, the framework of enforcement must be such as to make state digressions from the common interest not “worth it” to the state. In the one (albeit narrow) situation that is the subject of this paper, Europe has gotten the governance problem “right;” it should follow its own lead in neighboring problems of anticompetitive state action. The United States, however, has given preference to state sovereignty over national governance, even though the converse route would increase national welfare. Even when a U.S. state violates duties, it is insulated from the most effective remedy—suit by the victims of its offense. The conclusion of the tale is: in matters of state action, the United States should learn from Europe. This does not mean that Americans should do just as the Europeans do. But it does mean that the United States should allow itself a more nuanced appreciation of the relationship between state sovereignty and the common good; it should take note when these interests converge and when they diverge; and in case of the latter, it should consider accommodations consistent with the U.S. system.
Source Publication
2003 Fordham Corporate Law Institute: International Antitrust Law & Policy
Source Editors/Authors
Barry E. Hawk
Publication Date
2004
Recommended Citation
Fox, Eleanor M., "State Action in Comparative Context: What if Parker v. Brown Were Italian?" (2004). Faculty Chapters. 1243.
https://gretchen.law.nyu.edu/fac-chapt/1243
