A Framework for Policymakers to Analyze Proposed and Existing Antitrust Immunities and Exemptions

Abstract

This paper proposes a general framework to assist policymakers in framing the key issues and objectively weighing the relevant evidence and policy considerations for the purpose of determining whether to create, modify, or eliminate any statutory immunity to the federal antitrust laws. The framework also sets forth procedural standards for passage of immunities that could be useful to state legislatures. The two key provisions are a sunset provision (so that the effects of the statutory provision could be studied) and the requirement of a detailed legislative history. The latter requirement would greatly enhance the likelihood that the courts would make a proper determination of whether state action doctrine applies in a particular case. Should the legislative history set forth the reasons for the statute, the perceived benefits and costs of the statute, and other factors, it would be easier for the courts to determine whether the conduct at issue fits within the scope of the authorized activity under the statute, and whether the conduct is consistent with the intent of the legislature.