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Faculty Scholarship at Penn Law

Constitutional Law

Antitrust

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Full-Text Articles in Law

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp Apr 2015

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California ...


Progressive Legal Thought, Herbert J. Hovenkamp Jan 2015

Progressive Legal Thought, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A widely accepted model of American legal history is that "classical" legal thought, which dominated much of the nineteenth century, was displaced by "progressive" legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not ...


Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp Oct 2012

Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court has now agreed to review the Eleventh Circuit's decision in Phoebe-Putney, which held that a state statute permitting a hospital authority to acquire hospitals implicitly authorized such acquisitions when they were anticompetitive – in this particular case very likely facilitating a merger to monopoly. Under antitrust law’s “state action” doctrine a state may in fact authorize such an acquisition, provided that it “clearly articulates” its desire to approve an action that would otherwise constitute an antitrust violation and also “actively supervises” any private conduct that might fall under the state’s regulatory scheme.

“Authorization” in the ...


Federalism And Antitrust Reform, Herbert J. Hovenkamp Oct 2005

Federalism And Antitrust Reform, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action ...