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Antitrust And The Supremacy Clause , Richard Squire

Faculty Scholarship

In the course of damning the market giant Standard Oil, the Supreme Court declared that the purpose of the Sherman Antitrust Act is to prevent "monopoly and the acts which produce the same result as monopoly." The Constitution's Supremacy Clause, in turn, requires preemption-that is, non-enforcement--of state laws that conflict with a federal statute. Put together, these propositions suggest that state laws which create monopolies should be prime candidates for preemption via the Sherman Act. But despite the syllogistic logic bearing down on them, monopoly-creating state laws have easily weathered most federal antitrust challenges, even when the state does not …