Escaping the Parens Trap Andrew J. Bentivoglio

Abstract

State enforcement of federal antitrust law is a rich combination of questions about federalism, civil procedure, and remedies. Bedrock principles support a robust role for States as “parens patriae,” a relationship that positions them as protectors of consumers. Courts are puzzling through how to effectuate this role amidst centuries of common law history and evolving modern understandings of economic harms. This Note argues that allowing states to pursue nominal damages in parens patriae cases would better protect consumers, force clarification of the ill-defined limits to parens patriae actions, and allow for more efficient restitution in certain cases. This Note first describes the relationship between States and the federal government in antitrust enforcement and the implications that arise from the relationship in our federal structure. The Note then discusses the background of nominal damage awards generally and in the specific antitrust context. Finally, the Note argues for an application of nominal damages in parens patriae cases and discusses the implications for antitrust enforcement generally.