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The National Labor Relations Act (NLRA) creates rights for covered employees, defines conduct that violates those rights, and deems that conduct an unfair labor practice. But while given broad remedial powers under the Act, the Board's options were curtailed by the Supreme Court's limit on the use of deterrence as an express remedial justification. The Board was left with a strongly make-whole, i.e., ex-post, focus to undo the consequences of a violation.

Put differently, the current NLRA remedies reflect a pay-or-play philosophy. The goal is restoration after the fact, using ex-post remedies to give parties the benefit or status quo that they expected. An actor willing to pay may use a cost–benefit analysis and strategically choose to violate the Act, accepting the make-whole remedies later. But the Act created ex-ante statutory rights, not agreed-upon contractual terms. By statutory enactment, employees are given something of value deemed worthy of protection. Assigning value to compliance with the law in the first instance not only prevents sometimes irreparable harm but also reaffirms the inherent value of the right itself.

The impact of the Board's limited remedies is therefore a broad value-driven one. Without ex-ante deterrence, the available ex-post make-whole remedial options make a normative statement about individuals' rights under the Act: those rights may not be inherently worth enough to incentivize legal compliance. The make-whole focus can imply that financial compensation for the portion of harm that can be calculated and “undoing” some nonfinancial effects is sufficient. There is little drive to deter infringement before the fact. By examining the remedial philosophy behind contrasting approaches in the common law of torts and contract, this Article asserts that the current remedial strictures and framework undermine both the Act and the worth of its rights in the eyes of the public and the employees who hold them.

Law enforcement agents enforce rules that they might transgress in their private lives. Building from a theory of “hypocrisy aversion” where agents incur psychological costs from imposing a sanction on others for rules that they might break, the authors design a two-player game in which players are simultaneously placed in the roles of enforcer and potential transgressor. In this model, discretionary enforcement is endogenous to the size of the sanction. Conditional on rewards to enforcement and punishment that are both sufficiently small in the status quo, the authors demonstrate that price effects can be dominated by second-order hypocrisy effects, leading to rates of transgression that increase with larger sanctions. The authors test the model within a laboratory experiment where individuals can simultaneously gamble at the expense of a third party and punish those they observe gambling. Examining the comparable testable predictions of models of (i) selfish agents, (ii) pro-social agents, and (iii) pro-social agents who are averse to hypocrisy, the authors find evidence of hypocrisy aversion in the rates of gambling, sanctioning, and the changing composition of agent strategies. Our results suggest that increasing sanctions can backfire in the deterrence of common criminal and non-criminal offenses.

Many jurisdictions fine illegal cartels using penalty guidelines that presume an arbitrary 10% overcharge. This article surveys more than 700 published economic studies and judicial decisions that contain 2,041 quantitative estimates of overcharges of hard-core cartels. The primary findings are: (1) the median average long-run overcharge for all types of cartels over all time periods is 23.0%; (2) the mean average is at least 49%; (3) overcharges reached their zenith in 1891–1945 and have trended downward ever since; (4) 6% of the cartel episodes are zero; (5) median overcharges of international-membership cartels are 38% higher than those of domestic cartels; (6) convicted cartels are on average 19% more effective at raising prices as unpunished cartels; (7) bid-rigging conduct displays 25% lower markups than price-fixing cartels; (8) contemporary cartels targeted by class actions have higher overcharges; and (9) when cartels operate at peak effectiveness, price changes are 60–80% higher than the whole episode. Historical penalty guidelines aimed at optimally deterring cartels are likely to be too low.

The purpose of this paper is to examine the practical and legal challenges and barriers to the development of a private action in antitrust controls and to project those onto a consideration of the development of such rights of action through a case study of Brazil.

The paper provides a critical review of both the theoretical and practical barriers to the development of private rights of action, drawing upon the history of development in both the USA and in Europe and the regular considerations of policy and law making, through debate at the Organisation for Economic Co‐operation and Development. This comparative and historical analysis is projected into models of design and delivery for consideration by law makers.

Despite the different legal traditions and policy considerations of the different jurisdictions, the fundamental design of a common action pan‐jurisdictions and outwith conflict of law principles might be possible. The paper proposes a design framework to facilitate and achieve this. The case‐study of Brazil presents an interesting and recent context, and illustration, of this process.

The paper provides an historical and comparative account of the development of private rights actions in this area and provides, to the law maker, a framework and set of legal principles and practical enforcement and design guidelines. This framework and its guidelines should assist those countries seeking to introduce such rights of action in the policy area of antitrust control.

The historical and comparative approach draws together in one paper a contemporary global position in this area of law development.

Punitive damages is a controversial topic in the legal profession and in the field of economics. This chapter explores the economics of punitive damages as they relates to corporate defendants. The economic difference between large corporations and other potential defendants, such as individuals or smaller closely held companies, causes the effects of a punitive award to be different. In some circumstances, these differences raise significant questions as to the appropriateness of punitive damages when imposed on large corporations.

This paper surveys published economic studies and judicial decisions that contain 1,040 quantitative estimates of overcharges of hard-core cartels. The primary finding is that the median long-run overcharge for all types of cartels over all time periods is 25.0%:18.8% for domestic cartels and 31.0% for international cartels. Cartel overcharges are positively skewed, pushing the mean overcharge for all successful cartels to 43.4%. Convicted cartels are on average as equally effective at raising prices as unpunished cartels, but bid-rigging conduct does display somewhat lower mark-ups than price-fixing cartels. These findings suggest that optimal deterrence requires that monetary penalties ought to be increased.