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


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.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Eric Gorman | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.