Antitrust Immunity, State Administrative Law, and the Nature of the State
Alexander Volokh. North Carolina State Board of Dental Examiners v. FTC (N.C. Dental) has worked a potential revolution in antitrust law. A revolution because it makes clear that state regulatory agencies dominated by active market participants are not entitled to immunity from federal antitrust liability unless they are actively supervised by the State. But still only a potential revolution, because much depends on what counts as “active state supervision.” The story of N.C. Dental is, in large part, the story of how federal courts have tried to define “the State” (for purposes of state-action immunity). N.C. Dental has rejected a labeling approach, a balancing approach, and a sovereignty approach in favor of a financial disinterestedness approach. I argue that this approach isn’t obvious from an abstract political-philosophy standpoint but is…