An empirical evaluation of the normative justifications for cartel criminalisation

Abstract

A growing number of jurisdictions treat ‘hardcore’ cartel conduct as crime, in the beliefthat the threat of incarceration is necessary for deterrence. The significant economic harm caused by cartels isgenerally undisputed, but there is disagreement over whether cartel conduct is morally offensive enough to justify criminalisation. Critics argue that it is another example of ‘over-criminalisation’, seeking toregulate an activity that is morally ambiguous. Those in favour have sought to formulate normative justifications for why cartel conduct should be crime. Many of these rely on the assumption that members of society expect markets to be competitive and believe cartels are undesirable. This paper makes a significant contribution by testing this question empirically. Public surveys from the UK, Germany, Italy and the US are used to critically analyse the extent to which normative justifications for cartel conduct have empirical backing.