The Temple of Leniency: Thoughts Inspired by the Work of Laura Guttoso

Professor Spencer Waller
The Loyola University of Chicago, School of Law

This essay explores many of themes relating to antitrust leniency programs that Laura Guttoso analyzed in her work, particularly her book chapter entitled The Two Faces of Janus: Where Public and Private Enforcement Merge and Converge.  Part I of the essay examines antitrust leniency in the United States and the risk of over-reliance on leniency programs.  No leniency program of any type can be effective without the credible threat of investigation and challenge without a leniency applicant.  Waller contrasts antitrust’s arguable over-reliance on leniency with securities fraud and organized crime cases which maintain effective investigation and prosecution without the controversial features of leniency in the antitrust area.  Part II focuses on Laura Guttoso’s contributions to the field of antitrust leniency programs and their relationship to private enforcement.  Waller analyzes and praises her focus on public and private enforcement in terms of a broad array of values including deterrence, punishment, and compensation.  Laura argued for the importance of both private and public antitrust enforcement and the limits of the economic based paradigm in accurately depicting the role of competition within the context of leniency and anti-cartel enforcement.  This paper concludes with praise for Laura’s scholarly accomplishments and sadness for an important voice that has been lost going forward.