Putting the Lid on State-Sanctioned Cartels: Why the State Action Doctrine in its Current Form Should Become a Remnant of the Past

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This Article argues that not only is it appropriate to rein in expansion of the state action doctrine, but also courts should go one step further and remodel the doctrine to more closely resemble the European Union’s laws on Member State anticompetitive conduct. It is time to prevent special interest groups from soliciting shelter from state legislatures, thereby deicing the freeze on pro-competitive market behavior caused by the doctrine. The Background of this Article briefly describes United States antitrust law and explores the historical underpinnings and development of the state action doctrine. The Analysis examines the dangers and costs associated with the state action doctrine, exemplified by a typical example of how private firms can engage in shielded cartelized behavior under the guise of state regulation. The Proposal considers how the European Union treats anticompetitive state conduct to provide a framework for overhauling the state action doctrine. Finally, the Conclusion explores and responds to federalism concerns associated with any potential overhaul of the doctrine.

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Eric Gorman on:

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