Sunday, February 4, 2007
Posted by D. Daniel Sokol
A new SSRN paper by Jim Rossi of FSU on state action brings up some new points on one of my favorite topics. A number of interesting papers have come out recently discussing the appropriate role and scope of the state action immunity, an immunity in which the state may displace competition. These papers come at a time in which the FTC produced a long and detailed report on how the state action immunity has expanded in scope and in which the Antitrust Modernization Commission has made recommendations regarding the scope of state action (finding "The federal lower courts in some cases have misinterpreted or misapplied the state action doctrine to override the federal policy in favor of free-market competition in ways inconsistent with prior Supreme Court rulings."). Some of the more recent articles in the debate include those by Darren Bush (Mission Creep: Antitrust Exemptions and Immunities as Applied to Deregulated Industries), Richard Squire (Antitrust and the Supremacy Clause), and Jim Rossi (Antitrust Process and Vertical Deference: Delegation and Reasons for Agency Inaction in State Economic Regulation) (Rossi contrasts his approach with that of Squire).