Oregon Law Review : Vol. 89, No. 3, p. 1059-1106 : Replacing Antitrust Exemptions for Transportation Industries: The Potential for a “Robust Business Review Clearance”
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Date
2011
Authors
Carstensen, Peter C.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
Congress has scattered among various statutes at least thirty
exemptions or modifications of antitrust law. The greatest
concentration of these exemptions is in the area of commercial
transportation where there are six such exemptions, the oldest relating
to ocean shipping. Indeed, until the deregulatory movement of the
1970s and 1980s, most rates, routes, and terms for transportation were
the subject of direct regulatory control. However, starting in the
1970s, legislative policy toward transportation dramatically changed.
Increasingly, federal policy favors market competition in
transportation sectors and discourages regulatory interference. Yet
the exemptions remain on the books, and companies regularly seek
their benefit. This leads to an empirical question, which will form the
core of this Article: what kinds of conduct are now being presented to
regulators for approval and antitrust immunity? The analysis of this Article proceeds as follows: Part I provides a
brief summary of the six statutes that provide immunity for some
aspect of transportation as well as the contemporary business review
clearance process used by the Antitrust Division; Part II sets forth
plausible alternative explanations for retaining antitrust immunity in
the transportation industries; Part III then provides the empirical part
of this Article, analyzing agency grants of antitrust immunity in light
of the possible explanations for the transactions being immunized;
Part IV explains why the exemption process is not well adapted to the
needs of the parties or the public interest; Part V presents the basic
concept of a robust business review clearance process; Part VI
considers two arguments against the proposal; Part VII then identifies and discusses some key elements of the process that involve
important choices if it were to be implemented.
Description
48 p.
Keywords
Transportation, Antitrust law
Citation
89 Or. L. Rev. 1059 (2011)