Monday, August 22, 2005
Professor Elizabeth Trujillo of Florida State University College of Law offers a fresh perspective on the state action doctrine providing immunity from antitrust for conduct that falls under a state regulatory scheme. In State Action Antitrust Exemption Collides with Deregulation: Rehabilitating the Foreseeability Doctrine, Professor Trujillo points out that the immunity under the state action doctrine creates an impediment to the ability of states to deregulate electricity markets and open up the markets to competing new entrants. As she writes:
"The challenge for policymakers in establishing "pro-competition" policies is in implementing them within old regulatory structures originally intended to delegate authority to regulatory entities such as utilities which have traditionally dominated the electrical market. In effect, broad application of state action would interfere with any competitive efforts because it would continue to preserve old regulatory structures and protect traditionally dominant suppliers in the market."
Professor Trujillo recommends strengthening the requirement that the state regulation should reflect a clearly articulated state policy before allowing the immunity. In this way, courts can correct the misapplication of the Supreme Court's Midcal standard.