Law Commons^™

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch

Cleveland State Law Review

When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a "supplement" to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.

Using historical and empirical research, this Article establishes that the best explanation for the early failure …

The New Antitrust Federalism, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

"Antitrust federalism, " or the rule that state regulation is not subject to federal antitrust law, does as much as-and perhaps more than-its constitutional cousin to insulate state regulation from wholesale invalidation by the federal government. For most of the last century, the Court quietly tinkered away with the contours of this federalism, struggling to draw a formal boundary between state action (immune from antitrust suits) and private cartels (not). But with the Court's last three antitrust cases, the tinkering has given way to reformation. What used to be a doctrine with deep roots in constitutional federalism is now a …

Dr. Boulderlove; Or, How I Learned To Stop Worrying And Love Local Antitrust Liability , Kevin Charles Boyle

Pepperdine Law Review

Community Communications v. Boulder arose in the context of local cable registration, but the decision raised the specter of antitrust liability for nearly any local regulatory activity. This comment reviews state legislation enacted in response to Boulder against a framework of the post-Boulder "Parker Doctrine" and its probable requirements.

The Federal Antitrust Implications Of Local Rent Control: A Plaintiff's Primer, Steven G. Churchwell

Pepperdine Law Review

The proliferation of rent control laws in many California cities has led to a furious debate concerning its legal, economic, and social consequences. Leading scholars believe that rent control only exacerbates existing housing shortages and excludes the poor, the minority and the elderly from scarce rental housing. This article sets forth the proposition that the fixing of rent ceilings by a local government violates the federal antitrust laws and can be invalidated in federal court.

State Action Immunity And Preemption In Antitrust Challenges To State Pricing Laws: Alcoholic Beverage Control Board V. Taylor Drug Stores, Inc., Randy Donald Shaw

Kentucky Law Journal

No abstract provided.

The Immunity Of Local Governments And Their Officials From Antitrust Claims After City Of Boulder, J. Robert Brame Iii, Howard Feller

University of Richmond Law Review

On January 13, 1982, the United States Supreme Court rendered an opinion against the City of Boulder, Colorado, which expanded the potential liability of local governmental entities and their officials to claims under the federal antitrust laws. The Supreme Court essentially held that a municipality cannot obtain immunity from antitrust claims unless it satisfies a stringent test. Due to the broad language of the opinion, virtually every activity in which a local governmental entity engages, including the traditional activities of zoning, licensing, franchising, purchasing and operating public utilities, has become subject to antitrust challenges that may require a trial on …

Antitrust Significance Of Covenants Not To Compete, Michigan Law Review

Michigan Law Review

Covenants not to compete, despite their increasing prevalence and their obvious tendency to restrain competition, have seldom been attacked under either federal or state antitrust laws. In January 1965, however, William H. Orrick, Jr., then Assistant Attorney General in charge of the Antitrust Division, noted that the Division was becoming concerned about one aspect of the problem-the taking of overbroad covenants not to compete in connection with the purchase of a competitor. He suggested that such an agreement might have anticompetitive effects under either the Sherman Act or section 7 of the Clayton Act. This note will explore the present …

The Adequacy Of State Insurance Rate Regulation: The Mccarran-Ferguson Act In Historical Perspective, Spencer L. Kimball, Ronald N. Boyce

Michigan Law Review

Any substantial inquiry into the functioning of the insurance commissioner in American society poses the question, at the threshold of the inquiry, whether state regulatory power over the insurance business is likely to continue, or whether insurance will fall increasingly under the aegis of the federal government. This article seeks to ascertain the minimum conditions for the permanent preservation of state regulatory power over the insurance business, and to determine whether they are now satisfied. These conditions may be summarily stated: the Congress of the United States has shown its willingness to apply federal antitrust and marketing legislation to the …

Regulation Of Business-Resale Price Maintenance-Constitutionality Of Non-Signer Provion In Michigan Fair Trade Act, Richard D. Rohr S.Ed.

Michigan Law Review

Plaintiff, a manufacturer of trade-marked products, brought a bill to restrain defendant-retailer from selling plaintiff's products at prices below the minimum prices established by plaintiff in contracts made pursuant to the Michigan Fair Trade Act. Defendant admitted such sales; but contended that because it had not signed a fair trade agreement with plaintiff, enforcement of the Michigan act against defendant would violate its rights under the due process clause of the state constitution. The trial court, treating the transactions involved as being exclusively in intrastate commerce, held the Michigan Fair Trade Act, as applied to non-signers of fair trade agreements, …

Constitutional Law-Resale Price Maintenance -Fair Trade Acts, Joseph H. Mueller

Michigan Law Review

Four cases upholding the validity of the California and Illinois Fair Trade Acts were recently sustained by the United States Supreme Court. All four cases involved a similar set of facts. Plaintiffs, the owners or authorized distributors of certain well known trade-marked articles, entered into a series of contracts with wholesalers and retailers fixing the resale prices of their branded products. When defendants, certain retailers who had refused to enter into such agreements, persisted in reselling the articles below the prices stipulated in the contracts with other retailers, plaintiffs sued to enjoin them under the provisions of the state Fair …

Note And Comment, Edwin C. Goddard, George Seletto, Edson R. Sunderland, Victor H. Lane, Burke Shartel, George E. Longstaff

Michigan Law Review

Carriers - Second Cummins Amendment - It was seven years after the Carmack Amendment of the Hepburn Act of i9o6 before the Supreme Court began that series of decisions, extending from Adams Express Co. v. Croninger, 226 U. S. 491 (1913), to George N. Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278 (1915), which directly resulted in the First Cummins Amendment of March, 1915. One has only to read those cases, reviewed in 13 Micn. L. REv. 59o, and other notes referred to in 17 MICH. L. Rzv. 183, to see that the language of the Cummins …