The Transformation of Economic Regulation: Market Dynamics and Legal Lag Comments on Professor Bush's Mission Creep

In his contribution to this symposium, Professor Bush examines the many ways in which old law that insulates enterprises from antitrust law and competition policy hinders the transformation of the traditional regulated industries into market-oriented and market-policed economic sectors. It is indeed striking that the federal courts seem intent on hiding behind and giving new, expanded meaning to the old doctrines of filed rate and implied exemptions, as well as overly broad state action immunity, to avoid looking critically at the merits of competitive conduct by industries engaged in competition but which also can claim state or federal regulatory masters. Even the concept of primary jurisdiction, which was designed to facilitate retention of antitrust jurisdiction in areas of dual authority, has been, as Professor Bush shows, transformed into another shield against critical evaluation of the merits of conduct that is apparently anticompetitive and without legitimate business justification on its merits.