Antitrust and Unfair Competition Law
Competition: SPRING 2023, Vol 33, No. 1
Content
- 133 Years Young: Sherman Act Section Two Keeps Up With Big Tech
- Antitrust Restoration From California Anchored By a New Monopolization Synthesis
- California Should Amend the Cartwright Act To Address Single-firm Monopolization
- Competition Beyond Rivalry: Adapting Antitrust Merger Review To Address Market Realties
- Executive Committee
- Message From the Advisors
- Message From the Editor
- Over-prescription Is Bad Medicine: the Case Against a Knee-jerk Revision of Antitrust Injury
- Restrictions On Worker Mobility and the Need For Stronger Policies On Anticompetitive Employment Contract Provisions
- Should California Adopt Revisions Proposed By Congress and the New York State Legislature To Address Single-firm Conduct?
- Table of Contents
- Technological Monopolies, Innovation, and the Personal Freedom To Form Businesses: Like Oil and Water?
- The Adaptable Antitrust Laws
- The Risks of Requiring California-specific Merger Approvals
- Updating the Cartwright Act For the Twenty-first Century: Allowing Antitrust Claims For Unilateral Conduct
- Why Has California Waited So Long To Enact Its Own Merger Review Law?
- Dormant Commerce Clause: a Potential Brake On State Antitrust Legislation
DORMANT COMMERCE CLAUSE: A POTENTIAL BRAKE ON STATE ANTITRUST LEGISLATION
By Shira Liu1
The California Legislature has instructed the California Law Review Commission ("CLRC") to study expanding California’s Cartwright Act.2 The CLRC has been instructed to study whether to outlaw monopolies and redefine antitrust injury.3Either of these changes could expand the Cartwright Act beyond the current reach of federal antitrust law.4 The CLRC has also been instructed to consider adding state-level merger enforcement to the federal regime.5 These proposals are similar to those in New York’s proposed "Twenty-First Century Anti-Trust Act," which would expand New York’s antitrust law beyond the current reach of federal antitrust law and implement state-level merger enforcement.6 New York’s bill died in an Assembly Committee in June 2022, but its sponsor is seeking to reintroduce the bill in a future session.7
It is well-established that federal antitrust laws do not preempt state antitrust laws.8 But that does not mean that states have unlimited authority to expand their antitrust laws. One potential limit to state antitrust laws is the dormant Commerce Clause. As state legislatures consider expanding the reach of state antitrust laws, they should do so with an awareness of potential dormant Commerce Clause challenges.