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15 Wayne L. Rev. 813 (1968-1969)
The Anatomy of Judicial Exemptions from Antitrust: A Study in Gap-Filling

handle is hein.journals/waynlr15 and id is 827 raw text is: THE ANATOMY OF JUDICIAL EXEMPTIONS FROM ANTITRUST: A STUDY IN GAP-FILLING INTRODUCTION That legal scholars have paid scant attention to the subject of exemptions from the antitrust laws, is amply demonstrated by the absence of notable works treating the nature and rationale of exemptions from antitrust action. This comment examines the method by which these exemptions are created. The principal concern of this comment will be the exemptions from antitrust laws that have been judicially created, with the premise that creation of exemptions in this manner is clearly outside the function of the judicial system and lies solely within the realm of Congress. In part, the ensuing discussion will focus on the importance of a recent decision by the Court of Appeals for the Fifth Circuit,' which portends serious ramifications not only for the entire area of antitrust exemption, but also for another facet of law not entirely unrelated to the concept of exemption-the doctrine of sovereign immunity. An attempt will be made to relate the concept of sovereign immunity with that of exemption created by judicial fiat to provide a complete discussion of the problems involved. II CONCEPTS UNDERLYING THE CREATION OF ANTITRUST EXEMPTIONS Various arguments have been presented by proponents who wish to create exemptions from the prevailing economic norms of enforced competition. Some of these proposed exemptions have been accepted as necessary exclusions from the jurisdiction of the antitrust laws. As a preliminary matter, it is necessary to examine the various rationales for these exemptions, recognizing that there is no single basis or reason for all antitrust exemptions. Professors Kaysen and Turner have attempted to categorize the main reasons for exemptions from the antitrust laws on an economic basis.2 They distinguish three situations where a departure from the policy of antitrust is warranted: (1) A situation where a regulated market does not produce competitive results, and where competition will not survive if continued through practices not violative of the antitrust laws; (2) A situation where active competition exists but because of the inherent imperfections in the particular market, the competitive results I. Alabama Power Co. v. Alabama Elec. Cooperative, Inc., 394 F.2d 672 (5th Cir.), ceri. denied, 393 U.S. 1000 (1968). 2. C. KAYSEN & D. TURNER, ANTITRUST POLICY ON ECONOMIC AND LEGAL ANALYSIS 189-213 (1959).

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