Oregon Law Review : Vol. 89, No. 3, p. 1059-1106 : Replacing Antitrust Exemptions for Transportation Industries: The Potential for a “Robust Business Review Clearance”
Carstensen, Peter C.
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Carstensen, Peter C.
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.