Raising the Price of Pork in Texas : A Few Thoughts on Ghosh, Bush, and the Future of the Antitrust Immunities

A very bad deal was concluded not long ago at Love Field airport in Dallas, Texas, a deal that effectively continues for nearly a decade what has by wide consensus been one of the more pernicious, anticompetitive slices of pork-barrel protectionist federal interventions in all of American commerce (namely, the so-called Wright Amendment, a provision Schiavo-like in its hyper-local specificity, that keeps airlines operating from Love Field from competing with the major carriers at nearby Dallas-Fort Worth International, chief among the shielded DFW carriers being the behemoth American Airlines). Perhaps more alarming yet is that antitrust litigation challenging this deal recently failed, largely on antitrust immunity grounds. But however bad this deal may have been, observers who believe it proves something untoward about antitrust in the airline industry or antitrust in deregulated markets generally have gotten the story somewhat wrong. In fact, the Love Field deal really reflects nothing less than the now terminal insufficiency of the antitrust immunity doctrines and, in the end, the evisceration of substantive antitrust doctrine overall