A Framework for Policymakers to Analyze Proposed and Existing Antitrust Immunities and Exemptions
24 October 2005
By Dr. Gregory Leonard with Professor Darren Bush of the University of Houston Law Center and Professor Stephen Ross of the University of Illinois College of Law
This Report -- prepared for the US Antitrust Modernization Commission by NERA Senior Vice President Dr. Gregory Leonard, Professor Darren Bush of the University of Houston Law Center, and Professor Stephen Ross of the University of Illinois College of Law -- presents 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 an immunity to antitrust law. The report, as well as Dr. Leonard's testimony before the Commission, was cited extensively in the Commission's Report and Recommendations, which was presented to the President and Congress of the United States on 2 April 2007.
A Framework for Policymakers to Analyze Proposed and Existing Antitrust Immunities and Exemptions details the five stages of the proposed framework. Stage 1 addresses the initial information gathering process. Actual analysis of antitrust immunities begins in Stage 2 with the clear identification and assessment of their justifications; conduct for which there is no reasonable justification or conduct with regard to which there is no significant risk of antitrust liability does not require immunizing legislation. After applying the Stage 2 screen, the costs and benefits of an antitrust immunity should be identified and balanced with as much qualitative and/or quantitative rigor as feasible. Stage 3 details these issues. The focus of Stage 4 is tailoring the scope of an immunity to minimize anticompetitive effect. Finally, Stage 5 addresses sunset provisions and regular review of immunities.
