Parker v. Brown, the Eleventh Amendment, and Anticompetitive State Regulation

William H. Page, University of Florida - Levin College of Law and John E. Lopatka, Pennsylvania State University, Penn State Law have an interesting paper on Parker v. Brown, the Eleventh Amendment, and Anticompetitive State Regulation.

ABSTRACT: The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose differen limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based on statutory interpretation of the Sherman Act; the Court has shaped the shaped the doctrine over seventy-five years, guided by both considerations of state sovereignty and antitrust policy, so it should reflect a balance of the two critical variables. The Eleventh Amendment immunity, by contrast, has nothing specifically to do with antitrust policy; it is a general constitutional doctrine based on state sovereignty, with some acknowledgment of the demands of general federal authority. Our concern is that the application of the broader immunity is can thwart the balance between state sovereignty and antitrust policy reflected in the antitrust-specific immunity.