Houston Law Review
antitrust, Love Terminal deal, immunities
Shubha Ghosh and Darren Bush were personally involved in real-world opposition to the Love Field airline terminal deal, organizing petitioning efforts in Congress and otherwise trying to get it stopped.My comments here basically ride two horses, because Ghosh and Bush raise two important and intriguing problems. First, I think the problem in the Love Field case and other case law they discuss is really just the problem with all of federal antitrust. Antitrust is in a dire state across the board. Lately, we seem near the completion of its euthanasia, which happened pretty much as Adams and Brock predicted, although it took a little longer than they thought it might. Even prior to the 1980s, antitrust was a pockmarked and leprotic Swiss cheese of exemptions and immunities, created not only by the upwards of thirty--count 'em, thirty --federal statutory exemptions which give antitrust little or no purchase at all in broad swaths of American industry, but also by case law immunities for political activities, local government, labor, and regulated entities. Since then, however, the infusion of a certain kind of economic theory and a certain rhetoric about the costs and benefits of litigation have made it harder and harder with each passing year for plaintiffs to press antitrust liability. So far the culmination of this trend was seen in last year's Bell Atlantic Corp. v. Twombly decision, though even Twombly and the Court's other recent antitrust cases--almost all of which reversed lower court opinions favoring plaintiffs--are only one part of the Court's wide-ranging campaign against private plaintiffs, much of it driven by explicit tort reform rhetoric. Who knows how much farther the trend will go from there.
Christopher Sagers, Raising the Price of Pork in Texas: A Few Thoughts on Ghosh, Bush, and the Future of Antitrust Immunity, 45 Houston Law Review 395 (2008)