The Doctrine of Implied Repeal and the Federal Instrumentality Rule

• Author: Christopher L. Sagers
• Pages: 137-151

137

CHAPTER VII

THE DOCTRINE OF IMPLIED REPEAL AND THE

FEDERAL INSTRUMENTALITY RULE

Among the oldest arguments in antitrust has been that because a

defendant is subject to some federal oversight other than antitrust,

Congress should be understood to have excused it from antitrust. Made

for the first time only a few years after adoption of the Sherman Act,

1

the

argument was mostly unsuccessful prior to the 1970s. At that time,

beginning with decisions involving the securities industry, the Supreme

Court began what appears to have been a loosening of its approach. The

trend so far has culminated in the Court’s 2007 decision in Credit Suisse

Securities, LLC v. Billing.

2

The bulk of this chapter will focus on a doctrine known as “implied

repeal” or “implied preclusion,” under which courts will sometimes take

a federal statute to constitute an implicit repeal of antitrust with respect

to some conduct challenged in an antitrust action. Under current law, as

set out in Credit Suisse, courts are to ask in any given case whether the

application of both antitrust and some other federal statute or regulation

to the same conduct would be “clearly incompatible,” as determined by a

multi-factor inquiry. There remains some uncertainty what effect Credit

Suisse will have. Some speculation has been that it will significantly

expand the implied repeal doctrine,

3

though so far the lower courts

appear not to have done so dramatically. Some lower courts since Credit

Suisse have found implied repeal in the context of exchange-listed

securities, like that in Credit Suisse, but they have not found it

elsewhere.

4

This chapter will also discuss a related doctrine sometimes known as

the “federal instrumentality” rule. Even in the absence of statutory

language that might support implicit repeal, a private person might act at

the direction or with the approval of a federal agency, and courts have

usually broadly exempted them from antitrust.

1

. See infra note 7 and accompanying text.

2

. 551 U.S. 264 (2007).

3

. See infra note 5 and accompanying text.

4

. See part VII.C.2 below.