Jacob L. Kahn


The doctrine of implied antitrust immunity allows courts to reconcile two inconsistent congressional decrees: (1) that unrestrained competition—the primary goal of the antitrust laws—will produce the most efficient results in any marketplace; and (2) that artificial restraints on competition—as achieved through federal regulation—are necessary to ensure the proper functioning of certain industries. Thus, even when Congress has not expressly exempted a defendant's conduct from the antitrust laws, the fact that the conduct occurred in a regulated industry may sometimes be enough to justify an implied exemption. Due to the importance of the antitrust laws, however, the Supreme Court traditionally has refrained from granting claims for implied immunity in all but the most exceptional cases. This note examines a recent increase in the number of successful claims for implied antitrust immunity, and argues both that this trend should be reversed, and that the Supreme Court's precedents provide a means for doing so.

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