Antitrust and Consumer Protection
Competition: Fall 2015, Vol 24, No. 2
Content
- A Tale of Two Statutes: Cipro, Edwards, and the Rule of Reason
- Breaking a Monopoly: Vigilante Justice or the Sort of Innovative Approach We Celebrate?
- Capitalizing On Judicial Antitrust Experience
- Chair's Column
- Editor's Note
- Health Care Merger Analysis In the Era of Payment Reform
- Masthead
- Mobile Apps: Redefining the Virtual California Economy and the Laws That Govern It
- Off-label Use of the Cartwright Act: Will Cipro Require State Courts To Assess Federal Patent Validity In Pay-for-delay Cases?
- Pleading An Antitrust Conspiracy In a Post-twombly World
- Promoting Antitrust Compliance the Antitrust Division's Subtle Shift Regarding Corporate Compliance: a Step Toward Incentivizing More Robust Antitrust Compliance Efforts
- Putting Cipro Meat On Actavis Bones: a Case Study In Filling In the Legal Gaps
- Table of Contents
- The Antitrust and Unfair Competition Law Section
- The Magna Carta and the Sherman Act
- The Northern District of California Opens Its Doors To the World's Civil Antitrust Disputes
- What You See Isn't What You Get: How the Colgate Doctrine May Apply To the Disposable Contact Lens Antitrust Litigation
- Antitrust Treatment of State Licensing Boards In the Wake of North Carolina State Board of Dental Examiners V.F.T.C.
ANTITRUST TREATMENT OF STATE LICENSING BOARDS IN THE WAKE OF NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS V.F.T.C.
By David Gringer1
I. INTRODUCTION
In its decision formulating the state action immunity doctrine, the Supreme Court rested its holding primarily on respect for the political processes in the states: "in a dual system of government in which . . . the states are sovereign . . . an unexpressed purpose to nullify a state’s control over its officers and agents is not to be likely attributed to Congress."2 In light of this principle, the Supreme Court held that the federal antitrust laws were not intended to, and in fact did not reach state action.3 In so doing, the Court recognized Congress’ desire to "embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our constitution."4 A failure to recognize this principle would require the promotion of "competition at the expense of other values a State may deem fundamental" thereby "imposing] an impermissible burden on the States’ power to regulate."5
State action immunity offers its most robust protection where the actor in question is the state acting as sovereign.6 In such cases, the only showing that is required is that the challenged conduct was that of the state itself.7 As a result, the Sherman Act simply does not apply "to anticompetitive restraints imposed by the States as an act of government."8 Many cases have also held that actions pursuant to state agency regulation are entitled to the same protection.9