Public Policy Rationales Underlying the Doctrine

• Pages: 43-52

CHAPTER III

PUBLIC POLICY RATIONALES UNDERLYING THE

DOCTRINE

As reflected in the Supreme Court’s decisions, the state action

doctrine appears to be rooted in considerations of federalism and state

sovereignty—that is, that Congress did not intend to restrain certain state

regulatory activities in passing the Sherman Act.1Federalism has been

defined as “the assignment of dual responsibilities for governing to lower

and higher levels of government.”2The goal of federalism “is a system in

which there is sensitivity to the legitimate interests of both State and

National Governments, and in which the National Government, anxious

though it may be to vindicate and protect federal rights and federal

1.“This refrain runs through Supreme Court jurisprudence up through its

most recent state action opinion.”FTCSTAFF,REPORT OF THE STATE

ACTION TASK FORCE5 (2003) [hereinafter FTCSTATE ACTION REPORT];

see also, e.g., N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101,

1110 (2015) (Parker “recognized Congress’ purpose to respect the federal

balance and to ‘embody in the Sherman Act the federalism principle that

the States possess a significant measure of sovereignty under our

Constitution.’” (quoting Cmty. Commc’ns Co. v. Boulder, 455 U.S.40, 53

(1982))); FTC v. Ticor Title Ins. Co, 504 U.S. 621, 633 (1992) (“Our

decision [in Parker] was grounded in principles of federalism.”); City of

Columbiav. Omni Outdoor Adver., 499 U.S. 365, 372 (1991) (“[I]n order

to prevent Parkerfrom undermining the very interests of federalism it is

designed to protect, it is necessary to adopt a concept of authority broader

than what is applied to determine the legality of the municipality’s action

under state law.”); Town of Halliev. City of Eau Claire, 471 U.S. 34, 38

(1985) (“In Parker, relying on principles offederalism and state

sovereignty, the Court refused to construe the Sherman Act as applying to

the anticompetitive conduct of a State acting through its legislature.”);

ANTITRUST MODERNIZATION COMM’N,REPORT &RECOMMENDATIONS

367 (2007) (“State sovereignty and federalism were, and still are, the

underpinnings of Supreme Court state action jurisprudence.”) [hereinafter

AMCREPORT].

2. Robert P. Inman & Daniel L. Rubinfeld, Making Sense of the Antitrust

State Action Doctrine: Balancing Political Participation and Economic

Efficiency in Regulatory Feder alism, 75 TEX.L.REV. 1203, 1204 (1997).

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