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Competition Policy and Price Fixing$
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Louis Kaplow

Print publication date: 2013

Print ISBN-13: 9780691158624

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691158624.001.0001

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Detection of Prohibited Communications

Detection of Prohibited Communications

(p.398) 17 Detection of Prohibited Communications
Competition Policy and Price Fixing

Louis Kaplow

Princeton University Press

This chapter considers the communications-based prohibition, which requires demonstration of particular behavior that not only is hard to identify but also is not well correlated with high deterrence benefits and low chilling costs—indeed, in certain ranges, it may be negatively correlated with both. If one attempts to optimize the proof burdens (adjust the liability/no liability boundaries) under this circumscribed prohibition, one is led to reshape it into the direct approach. The chapter explains that, if one calibrates the burden of proof under the direct approach to find liability in the same number of situations as under the communications-based prohibition, then the direct approach dominates. The cases it targets involve both greater social danger and less risk of chilling desirable behavior than those most likely to generate liability under commentators' favored rule.

Keywords:   communications-based prohibition, detection, deterrence, burden of proof, direct approach, liability

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