* Professor of Law, Brigham Young University Law School. B.S., Massachusetts Institute of Technology, 1964; J.D., Stanford, 1967. I wish to thank Professors Jean Wegman Burns and Thomas D. Morgan for their helpful comments on a previous draft of this Article, and Allyson Davidson and Shane Keppner for their invaluable research assistance.
1 Federal Trade Comm’n v. Ticor Title Ins. Co., 504 U.S. 621 (1992); City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991); Patrick v. Burget, 486 U.S. 94 (1988); Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985); Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48 (1985); Hoover v. Ronwin, 466 U.S. 558 (1984); Community Communications Co. v. City of Boulder, 455 U.S. 40 (1982); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980); New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96 (1978); City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978); Bates v. State Bar, 433 U.S. 350 (1977); Cantor v. Detroit Edison Co., 428 U.S. 579 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
2 317 U.S. 341 (1943).
3 Hoover, 466 U.S. at 568; Bates, 433 U.S. at 359.
4 Town of Hallie, 471 U.S. at 45–46.
5 Midcal, 445 U.S. at 105 (quoting Louisiana Power & Light, 435 U.S. at 410).
6 Community Communications, 455 U.S. at 53.
7 Patrick, 486 U.S. at 100–01; Town of Hallie, 471 U.S. at 45.
8 See generally, e.g., Frank H. Easterbrook, Antitrust and the Economics of Federalism, 26 J. Law & Econ. 23 (1983); Einer Richard Elhauge, The Scope of Antitrust Process, 104 Harv. L. Rev. 667 (1991); Merrick B. Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 486 (1987); Daniel J. Gifford, Federalism, Efficiency, The Commerce Clause and the Sherman Act: Why We Should Follow a Consistent Free-Market Policy, 44 EMORY L.J. 1227 (1995); Herbert Hovenkamp & John A. MacKerron III, Municipal Regulation and Federal Antitrust Policy, 32 UCLA L. Rev. 719 (1985); Robert P. Inman & Daniel L. Rubinfeld, Making Sense of the Antitrust State-Action Doctrine: Balancing Political Participation and Economic Efficiency in Regulatory Federalism, 75 Tex. L. Rev. 1203 (1997); Thomas M. Jorde, Antitrust and the New State Action Doctrine: A Return to Deferential Economic Federalism, 75 Cal. L. Rev. 227 (1987); William H. Page, Antitrust, Federalism, and the Regulatory Process: A Reconstruction and Critique of the State Action Exemption After Midcal Aluminum, 61 B.U. L. Rev. 1099 (1981) [hereinafter Page, Antitrust]; William H. Page, Capture, Clear Articulation, and Legitimacy: A Reply to Professor Wiley, 61 S. Cal. L. Rev. 1343 (1988) [hereinafter Page, Capture]; William H. Page, Interest Groups, Antitrust, and State Regulation: Parker v. Brown in the Economic Theory of Legislation, 1987 Duke L.J. 618 (1987) [hereinafter Page, Interest Groups]; Matthew L. Spitzer, Antitrust Federalism and Rational Choice Political Economy: A Critique of Capture Theory, 61 S. Cal. L. Rev. 1293 (1988); John S. Wiley, Jr., A Capture Theory of Antitrust Federalism, 99 Harv. L. Rev. 713 (1986).
9 See generally Wiley, supra note 8.
10 See generally, e.g., Elhauge, supra note 8; Page, Interest Groups, supra note 8; Page, Capture, supra note 8; Spitzer, supra note 8.
11 See generally, e.g., Jorde, supra note 8.
12 See generally, e.g., Elhauge, supra note 8.
13 See generally, e.g., Easterbrook, supra note 8; Hovenkamp & MacKerron, supra note 8; Spitzer, supra note 8.
14 See generally, e.g., Easterbrook, supra note 8; Jorde, supra note 8; Page, Antitrust, supra note 8; Wiley, supra note 8.
15 Easterbrook, supra note 8, at 29, 38; Wiley, supra note 8, at 729–30.
16 Wiley, supra note 8, at 731.
17 499 U.S. at 365. See infra notes 175–179 and accompanying text.
18 Parker, 317 U.S. at 344.
19 See, e.g., Omni, 499 U.S. at 365; Town of Hallie, 471 U.S. at 34; Community Communications, 455 U.S. at 40; Louisiana Power & Light, 435 U.S. at 389.
20 Ticor, 504 U.S. at 621; Patrick, 486 U.S. at 94; Southern Motor Carriers, 471 U.S. at 48; Cantor, 428 U.S. at 579.
21 See generally, e.g., Neo Gen Screening, Inc. v. New England Newborn Screening Program, 187 F.3d 24 (1st Cir. 1999); Automated Salvage Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59 (2d Cir. 1998); Earles v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033 (5th Cir. 1998); Bankers Ins. Co. v. Florida Residential Property & Casualty Joint Underwriting Ass’n, 137 F.3d 1293 (11th Cir. 1998); Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 111 F.3d 1427 (9th Cir. 1997); California CNG, Inc. v. Southern Cal. Gas Co., 96 F.3d 1193 (9th Cir. 1996); Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609 (11th Cir. 1995); Yeager’s Fuel, Inc. v. Pennsylvania Power & Light Co., 22 F.3d 1260 (3d Cir. 1994); Charley’s Taxi Radio Dispatch Corp. v. SIDA, Inc., 810 F.2d 869 (9th Cir. 1987); Deak-Perera Hawaii, Inc. v. Department of Transp., 745 F.2d 1281 (9th Cir. 1984).
22 See, e.g., Southern Motor Carriers, 471 U.S. at 63 (holding actions of the state legislatures and state supreme courts ipso facto immune); see also Hoover, 466 U.S. at 568; Goldfarb, 421 U.S. at 790–91.
23 See Southern Motor Carriers, 471 U.S. at 64 (“Requiring express authorization for every action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness.”).
24 Town of Hallie, 471 U.S. at 46 n.10 (“In cases in which the actor is a state agency, it is likely that active state supervision would also not be required, although we do not here decide that issue.”).
25 See generally Page, Antitrust, supra note 8; Page, Interest Groups, supra note 8; Page, Capture, supra note 8.
26 See supra note 21.
27 See, e.g., Hass v. Oregon State Bar, 883 F.2d 1453 (9th Cir. 1989) (concluding that Oregon State Bar was a state agency, but assuming that its requirement that all members of the state bar purchase malpractice insurance from the Bar was subject to the clear articulation requirement); cf. Cost Management Servs., Inc. v. Washington Natural Gas Co., 99 F.3d 937, 942 (9th Cir. 1996) (holding allegation that defendant engaged in off-tariff pricing of natural gas not immune despite authority of state utilities commission to police pricing if off-tariff pricing was illegal under state law).
28 See, e.g., Town of Hallie, 471 U.S. at 46 n.10 (“In cases in which the actor is a state agency, it is likely that active state supervision would also not be required, although we do not here decide that issue.”). See generally Porter Testing Lab. v. Board of Regents, 993 F.2d 768 (10th Cir. 1993).
29 See Neo Gen Screening, 187 F.3d at 24; Charley’s Taxi, 810 F.2d at 869; Deak-Perera, 745 F.2d at 1281; Saenz v. University Interscholastic League, 487 F.2d 1026 (5th Cir. 1973); see also Automated Salvage, 155 F.3d at 59 (suggesting, without deciding, that state agency policy determinations are ipso facto immune).
30 See Cine 42nd Street Theatre Corp. v. Nederlander Org., Inc., 790 F.2d 1032, 1049 (2d Cir. 1986) (Newman, J., concurring) (“The inquiry as to foreseeability ought to take into account two variables—not only the scope of the statutory authority but also, and perhaps more important, the proximity of the defendant’s actions to the sovereign authority of the state.”); see also Southern Motor Carriers, 471 U.S. at 64 (stating that, where state agencies are involved, “as long as the State as sovereign clearly intends to displace competition in a particular field with a regulatory structure, the first prong of the Midcal test is satisfied.”); TEC Cogeneration, Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1568 (11th Cir. 1996) (holding that the actions of a state agency are properly considered in determining the specifics of state policy); Yeager’s Fuel, 22 F.3d at 1268–69 (according weight to views of state public utility commission in determining what state policy was).
31 See, e.g., Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48, 63 (1985) (“Parker immunity is available only when the challenged activity is undertaken pursuant to a clearly articulated policy of the State itself, such as a policy approved by a state legislature . . . or a State Supreme Court.”).
32 See, e.g., Hoover v. Ronwin, 466 U.S. 558, 568 (1984); Bates v. State Bar, 433 U.S. 350, 360–62 (1977).
33 Compare Town of Hallie v. City of Eau Claire, 471 U.S. 34, 41–43 (1985)(requiring a clear articulation of state policy as a condition of municipal immunity), with California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 103–06 (1980) (requiring both a clear articulation of state policy and active supervision of private conduct as conditions of antitrust immunity for private individuals).
34 See generally, e.g., Easterbrook, supra note 8; Elhauge, supra note 8; Garland, supra note 8; Gifford, supra note 8; Hovenkamp & MacKerron, supra note 8; Inman & Rubinfeld, supra note 8; Jorde, supra note 8; Page, Antitrust, supra note 8; Page, Capture, supra note 8; Page, Interest Groups, supra note 8; Spitzer, supra note 8; Wiley, supra note 8.
35 City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978).
36 455 U.S. at 40 (1982).
37 See Hovenkamp & MacKerron, supra note 8, at 738–39.
38 See Easterbrook, supra note 8, at 36–37.
39 See id.; see also Elhauge, supra note 8, at 670, 676, 682; Garland, supra note 8, at 502; Hovenkamp & MacKerron, supra note 8, at 732, 758; Jorde, supra note 8, at 237, 241–42; Wiley, supra note 8, at 722, 731.
40 See id.
41 See Easterbrook, supra note 8, at 30–31; Jorde, supra note 8, at 249; Page, Antitrust, supra note 8, at 1101; Spitzer, supra note 8, at 1299; Wiley, supra note 8, at 732–34.
42 See Hovenkamp & MacKerron, supra note 8, at 774.
43 See Inman & Rubinfeld, supra note 8, at 1209, 1233, 1249, 1255, 1284; Jorde, supra note 8, at 249–50; Wiley, supra note 8, at 734.
44 See, e.g., Garland, supra note 8; Jorde, supra note 8, 251–52; Page, Interest Groups, supra note 8, at 623.
45 See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (“The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances . . . but does not extend to counties and similar municipal corporations.”); Lincoln County v. Luning, 133 U.S. 529, 530 (1890) (“[W]hile the county is territorially a part of the state, yet politically it is also a corporation created by and with such powers as are given to it by the State. In this respect it is a part of the State only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the State.”); see also Moor v. Alameda County, 411 U.S. 693, 720–21 (1973) (pointing out the “independent corporate character” of California counties).
46 U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”).
47 See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974) (stating that the Eleventh Amendment bars suits against statewide agency); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945) (same); Hans v. Louisiana, 134 U.S. 1 (1890) (stating that the Eleventh Amendment bars suits against a state by its own citizens).
48 See Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (considering the Eleventh Amendment’s “twin reasons” in concluding that a bi-state compact agency fell outside the Amendment’s protection).
49 Surgical Care Ctr. v. Hospital Serv. Dist. No. 1, 171 F.3d 231, 234 (5th Cir. 1999) (en banc) (cautioning against conflating the two doctrines).
50 See Louisiana Power & Light, 435 U.S. at 412–13 (relying on Eleventh Amendment precedent to conclude that cities are not themselves sovereign and that “[in] light of the serious economic dislocation which could result if cities were free to place their own parochial interests about the Nation’s economic goals reflected in the antitrust laws . . . we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach”).
51 See, e.g., Community Communications, 455 U.S. at 53–54; Parker, 317 U.S. at 350–51 (“[A]n unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.”).
52 See Federal Trade Comm’n v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992).
53 Community Communications, 455 U.S. at 53–54.
54 See Page, Interest Groups, supra note 8, at 632–40.
55 A notable exception is Einer Elhauge, who stands alone in recognizing that under the Supreme Court’s decisions, a restraint is entitled to state action antitrust immunity only if appropriate state actors make a substantive decision in favor of the terms of the challenged restraint before it is imposed on the market. See Elhauge, supra note 8, at 671.
56 Compare Parker, 317 U.S. at 351–52 (emphasis added), with Ticor, 504 U.S. at 633 (maintaining that a state may not confer immunity on private parties by fiat), and Town of Hallie, 471 U.S. at 46–47 (stating that a state may not validate a municipality’s anticompetitive conduct by declaring it lawful), and Midcal, 445 U.S. at 106 (stating that “the national policy in favor of [free] competition cannot be thwarted by casting a gauzy cloak of state involvement” over private anticompetitive conduct), and Cantor v. Detroit Edison Co., 428 U.S. 579, 592–93 (1976) (holding that state authorization, encouragement, or approval of private anticompetitive conduct is insufficient to confer immunity).
57 See, e.g., Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994) (“[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.”) (internal quotation omitted); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (noting, in the context of retrospective administrative policymaking, that “retroactivity is not favored in the law”).
58 Justice Scalia, in his concurrence, noted: “It is contrary to fundamental notions of justice, and thus contrary to realistic assessment of probable legislative intent. The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.” 494 U.S. 827, 855 (1990) (Scalia, J., concurring). See also Landgraf, 511 U.S. at 265–66 (“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.”) (citations omitted); Union Pac. R.R. v. Laramie Stock Yards Co., 231 U.S. 190, 199 (1913) (referring to the reason of “obvious justice” supporting the non-retroactivity principle).
59 Elhauge points out that a pre-injury process of disinterested decision making requires financially interested actors to come forward first and provide a realistic assurance that the restraint is in the public interest before market injury is suffered. See Elhauge, supra note 8, at 714.
60 See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 241–43, 243 n.20 (1995) (Breyer, J., concurring) (recognizing that prospectivity and general applicability provide assurances against legislative “singling out” of particular favored or disfavored groups); Landgraf, 511 U.S. at 266–67 (recognizing that a legislature’s responsiveness to political pressures may tempt it “to use retroactive legislation as a means of retribution against unpopular groups or individuals”).
61 See Wiley, supra note 8; see also Elhauge, supra note 8, at 695 (arguing that the scope of immunity should be determined by whether the restraint in question was adopted by a financially disinterested decisionmaker; “state action immunity applies only when a financially disinterested state official controls the terms of the challenged restraint”).
62 See, e.g., Page, Capture, supra note 8; Page, Interest Groups, supra note 8; Spitzer, supra note 8.
63 See Page, Interest Groups, supra note 8.
64 Id. at 631–32.
65 Id. at 635–37.
66 Parker, 317 U.S. at 351–52.
67 See supra note 56.
68 435 U.S. at 389.
69 Id. at 414–15.
70 See 455 U.S. at 55–56.
71 Id.
72 See supra notes 40–41.
73 See, e.g., Louisiana Power & Light, 435 U.S. at 412 (stating that under our dual system of government, “‘states are sovereign, save only as Congress may constitutionally subtract from their authority’” (quoting Parker, 317 U.S. at 351) and that “[c]ities are not themselves sovereign; they do not receive all the federal deference of the States that create them”).
74 486 U.S. at 94.
75 Id. at 100.
76 Id. at 101 (emphasis added).
77 Id.
78 504 U.S. at 621.
79 Id. at 629, 638.
80 Id. at 637.
81 Id.
82 Id. at 636.
83 Community Communications, 455 U.S. at 55.
84 471 U.S. at 34.
85 See id. at 45–47.
86 Id. at 42.
87 Id. at 42, 47.
88 See, e.g., C. Douglas Floyd & E. Thomas Sullivan, Private Antitrust Actions: The Structure and Process of Civil Antitrust Litigation § 4.1.7 (1996); Elhauge, supra note 8, at 691–92; Garland, supra note 8; Gifford, supra note 8, at 1244; Jorde, supra note 8, at 242, 244.
89 See supra notes 70–71 and accompanying text.
90 See, e.g., Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 111 F.3d 1427, 1442–43 (9th Cir. 1997); Federal Trade Comm’n v. Hospital Bd. of Dirs., 38 F.3d 1184, 1188, 1190 (11th Cir. 1994).
91 Page, Antitrust, supra note 8, at 1101, 1129.
92 See Page, Interest Groups, supra note 8, at 643–44.
93 See Easterbrook, supra note 8, at 29, 30, 32–33, 36–37, 41.
94 Hovenkamp & MacKerron, supra note 8, at 724, 751, 765, 774–75.
95 Wiley, supra note 8, at 715.
96 Id.
97 Jorde, supra note 8, at 236–37, 241.
98 Elhauge, supra note 8, at 674–76, 692–95.
99 Jorde, supra note 8, at 244.
100 See generally Garland, supra note 8; Page, Antitrust, supra note 8; Page, Capture, supra note 8; Page, Interest Groups, supra note 8.
101 Town of Hallie, 471 U.S. at 47.
102 Id.
103 See Community Communications, 455 U.S. at 56; Louisiana Power & Light Co., 435 U.S. at 394–95.
104 See Town of Hallie, 471 U.S. at 47.
105 See 435 U.S. at 389.
106 Id. at 403.
107 Id. at 408.
108 See supra note 45.
109 See, e.g., Crosby v. Hospital Auth., 93 F.3d 1515 (11th Cir. 1996) (holding statutory authorization for hospital authorities to deny staff privileges on the basis of training, experience, competence, availability and “reasonable objectives, including, but not limited to, the appropriate utilization of hospital facilities,” make it foreseeable that staff privileges would be denied based on a determination that the existing staff was sufficient to satisfy demand for the specialty in question); Martin v. Memorial Hosp., 86 F.3d 1391, 1400 (5th Cir. 1996) (holding statute authorizing municipal hospital to contract with any individual to provide services regarding any facet of the operation of the hospital, coupled with state certificate of need law, made entry of exclusive contract for the provision of renal services at the hospital foreseeable).
110 See, e.g., Southern Motor Carriers, 471 U.S. at 63; California CNG, Inc. v. Southern Cal. Gas Co., 96 F.3d 1193, 1203 (9th Cir. 1996); Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609, 612 (11th Cir. 1995). But see Riverview Invs., Inc. v. Ottawa Cmty. Improvement Corp., 774 F.2d 162, 163 (6th Cir. 1985) (altering earlier order and instructing district court to determine on remand whether the state—as opposed to the city—had actively supervised a private defendant’s conduct pursuant to municipal regulation); City Communications, Inc. v. City of Detroit, 660 F. Supp. 932 (E.D. Mich. 1987).
111 See supra notes 39–42.
112 In an important recent en banc decision, the Court of Appeals for the Fifth Circuit has begun that trend, recognizing that an “overly lax view of the necessity of expressed legislative will” undermines the interests of federalism. Surgical Care Center of Hammond, 171 F.3d at 236.
113 See supra note 90.
114 See Page, Antitrust, supra note 8; Page, Interest Groups, supra note 8.
115 Page, Antitrust, supra note 8, at 1101, 1107.
116 Id. at 1111 (citations omitted).
117 Id. at 1112.
118 Id. at 1113.
119 Page, Interest Groups, supra note 8, at 619.
120 Id. at 621.
121 See id. at 634–35.
122 Id. at 640; see also Inman & Rubinfeld, supra note 8 (focusing at various points on the importance of political participation and arguing that the Court now uses a process- oriented approach that enhances political participation by requiring anticompetitive policies to be clearly authorized by the state legislature).
123 See infra notes 254–259 and accompanying text.
124 421 U.S. at 773.
125 See Page, Antitrust, supra note 8, at 1116–17.
126 421 U.S. at 789–90.
127 See infra notes 159–168 and accompanying text.
128 433 U.S. at 350.
129 466 U.S. at 558.
130 See ARIZ. CONST. art. VI, § 38.
131 The Court stated: “In the instant case . . . the challenged restraint is the affirmative command of the Arizona Supreme Court under its Rules 27(a) and 29(a) and its Disciplinary Rule 2–101(B). That court is the ultimate body wielding the State’s power over the practice of law. . . .” Bates, 433 U.S. at 359–60 (emphasis added).
132 Hoover, 466 U.S. at 569.
133 Id. at 568.
134 Although state supreme courts, unlike most agencies, have independent constitutional authority to regulate the practice of law, they also typically exercise substantial regulatory authority with respect to the practice of law delegated to them by the state legislature. See, e.g., In re Attorney Discipline System; Requests of the Governor and the State Bar of California, 967 P.2d 49 (Cal. 1998). Courts have upheld such legislative regulation of the practice of law if it is reasonable and not in material conflict with the supreme court’s inherent authority. See id. at 60–61; see also Note, The Inherent Power of the Judiciary to Regulate the Practice of Law–A Proposed Delineation, 60 Minn. L. Rev. 783, 802 (1976). In implementing legislatively prescribed regulation of the bar, state supreme courts exercise a function indistinguishable from that of administrative agencies generally.
135 See generally John B.Wefing, State Supreme Court Justices: Who Are They?, 32 New Eng. L. Rev. 49, 71–72 (1997) (concluding that state supreme court justices are selected by appointment in nine states, by partisan election in ten states, by non-partisan election in 16 states, and by a “mixed” process in 15 states); Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 776–78 (1995) (concluding that state supreme court justices are subject to contested elections, either partisan or non-partisan, in 29 states at some point in their careers, and that justices in 13 states are at some time subjected to a retention election without an opponent).
136 In Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988), the Supreme Court, in the course of rejecting a claim of “petitioning” immunity under the Noerr-Pennington doctrine for the anticompetitive effect that standards adopted by a private standard setting organization had in the market of their own force, adopted an ambiguous “context and nature” test for determining the scope of Noerr-Pennington immunity. Id. at 505. In assessing the “context and nature” of the petitioning activities at issue in Allied Tube, the Court noted that they had been directed at a private organization rather than a governmental body, and that unlike a governmental body, “no official authority has been conferred on [the association] by any government . . . .” Id. at 501. The Court went on to state that “where, as here, the restraint is imposed by persons unaccountable to the public and without official authority, many of whom have personal financial interests in restraining competition, we have no difficulty concluding that the restraint has resulted from private action.” Id. at 502. To the extent that Noerr and Parker immunities are viewed as “complementary expressions of the principle that the antitrust laws regulate business, not politics,” City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 383 (1991), the Court’s decision in Allied Tube is entirely consistent with a focus on the locus of official policymaking authority in determining the scope of the Parker doctrine. Indeed, Omni’s ultimate rejection of any exception to either Parker or Noerr immunity for actions taken by governmental officials pursuant to an anticompetitive “conspiracy” with private parties, id. at 374–75, 382–83, is inconsistent with a view of Parker immunity as turning essentially on direct political responsiveness to the electorate.
137 471 U.S. at 45, 47.
138 Id. at 45 n.9 (emphasis added).
139 Page recognizes that municipalities pose a problem for his theory, but attempts to justify their treatment on the ground that they do not reflect as wide a range of interests as the state legislature. Page, Interest Groups, supra note 8, at 639. Inman and Rubinfeld similarly argue that immunity should turn significantly on the federalism value of political participation, but recognize that this approach creates problems in explaining the restrictive treatment of municipal action in view of the fact that small units of government are presumptively more politically responsive to the electorate than larger units. See Inman & Rubinfeld, supra note 8, at 1214–15, 1223, 1232, 1255–56. Their attempted reconciliation turns on the argument that the requirement for clear articulation by a state legislature ensures that unrepresented interests affected by economic spill-overs will be represented in the “original agreement” to permit anticompetitive actions. See id. at 1257. This fails to explain, however, why supervision of municipal action is not required to ensure that the bargain is kept. See id.
140 See, e.g., Hovenkamp & MacKerron, supra note 8, at 774–75; see also Jorde, supra note 8, 236–37, 248; Wiley, supra note 8, 715.
141 Jorde also argues that the scope of Parker immunity should turn in significant degree on the “citizen participation value” of federalism. See Jorde, supra note 8, at 229. He does not argue, however, that this value requires the direct political representation characteristic of the state legislature as a condition of immunity. See id. To the contrary, he argues that the federalism basis of Parker suggests that immunity should extend more broadly to the decisions both of municipalities and state agencies than a strict interpretation of the clear articulation requirement would permit, and that the “value of citizen participation is served by opportunities for affected interests to participate in the regulatory process and supervision of agencies by the state legislature in the process of budget review. See id. at 227-28, 242-43, 249–50. Elhauge argues that the Court’s current Parker doctrine is “poorly tailored to promoting citizen participation” and contends that the question instead should turn on whether the restraint at issue was imposed by a financially interested decision maker. See Elhauge, supra note 8, at 671, 678. Although he leaves the question whether the financially disinterested decision maker also must be “politically accountable” unresolved, his discussion of state agencies makes clear that he does not believe that the direct political accountability characteristic of a state legislature is required. See id. at 689–90, 703–04, 738–46.
142 435 U.S. at 389.
143 Id. at 405–06.
144 Hovenkamp & MacKerron, supra note 8, at 775–76 & n.92.
145 As Inman and Rubinfeld recognize, their emphasis on the political participation value of federalism in explaining the contours of the Parker doctrine implies that local regulations that affect only local residents must be approved only locally. See Inman & Rubinfeld, supra note 8, at 1266. This position has consistently been rejected by the Supreme Court.
146 Page, Antitrust, supra note 8; Page, Interest Groups, supra note 8, at 630–33.
147 Ira Sharkansky, State Administrators in the Political Process, in Politics in the American States: A Comparative Analysis 238, 240 (Herbert Jacob & Kenneth N. Vines eds., 1971) (noting that we have only superficial knowledge about the functioning of state administrative agencies in the policymaking process).
148 Wiley, supra note 8, 724–25 (arguing that legislatures are equally likely to be captured by special interests as are agencies).
149 Inman & Rubinfeld, supra note 8, at 1234.
150 See Glenn Abney & Thomas P. Lauth, The Politics of State and City Government 82 (1986); William L. Cary, Politics and the Regulatory Agencies 57 (1967) (observing that at the legislative committee level, industry pressure can be overwhelming); Harold H. Bruff & Ernest Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 Harv. L. Rev. 1369, 1379 (1977); Richard A. Posner, Taxation by Regulation, Bell J. Econ. & Mgmt. Sci. 22, 43–44 (Spring 1971); Abraham D. Sofaer, Judicial Control of Informal Discretionary Adjudication and Enforcement, 72 Colum. L. Rev. 1293, 1306 (1972) (commenting that the arguments that agencies are subject to pressure by special interest groups are overstated, “especially if that leads to the proposition that the legislative branch is any better in these respects”); Richard B. Stewart, Madison’s Nightmare, 57 U. Chi. L. Rev. 335, 341 (1990); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1695–1696 (1975).
151 See, e.g., Harold H. Bruff, Legislative Formality, Administrative Rationality, 63 TEX. L. REV. 207, 244 (1984) [hereinafter Bruff, Legislative Formality] (stating: “Long-held theories that agencies become the captives of their regulated industries no longer seem true, if they ever were, in light of such developments as expanded agency jurisdictions that cover many industries, the rise of ‘public interest’ groups, and widespread participation in the administrative process”); William Gormley, Policy Dilemmas in a Political Context, in State Politics and the New Federalism: Readings and Commentary 386, 395–97 (Marilyn Gittell ed., 1986) [hereinafter Gormley, Policy Dilemmas] (noting that state social regulatory agencies regulate so many industries that they are not easily dominated by one and that it is easy to exaggerate the impact of regulated industries on economic regulatory agencies).
152 See Bruff & Gellhorn, supra note 150, at 1412 (noting that a vital aspect of agency rulemaking is the opportunity for participation of all interested parties through notice and comment procedures); Gormley, Policy Dilemmas, supra note 151, at 398 (noting that citizen groups are become increasingly active in state administrative processes and the advent of public advocacy offices); William T. Gormley, Jr., Statewide Remedies for Public Underrepresentation in Regulatory Proceedings, in Public Administration, Politics, and the People: Selected Readings for Managers, Employees, and Citizens 399, 400–01 (Dean L. Yarwood ed., 1987) [hereinafter Gormley, Statewide] (tracing the increase in direct and indirect public participation in state administrative proceedings).
153 See, e.g., Harold H. Bruff, Separation of Powers Under the Texas Constitution, 68 Tex. L. Rev. 1337, 1344–45 (1990) [hereinafter Bruff, Texas Constitution] (pointing out that state agencies are subject to procedural safeguards and judicial review, as well as to legislative and executive oversight and control through the lawmaking, appointments, and appropriations processes); Bruff & Gellhorn, supra note 150, at 1377–78, 1443 (1977); Gormley, Policy Dilemmas, supra note 151, at 389–90; Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games and Accountability, Law & Contemp. Probs. 185, 251 (Spring 1994).
154 See, e.g., Gormley, Policy Dilemmas, supra note 151, at 392 (noting that eleven states’ public utilities commissions are popularly elected).
155 See abney & Lauth, supra note 150, at 82 (noting that state agencies report the influence of the legislature and the governor to be much higher than that of interest groups); Cary, supra note 150, at 59 (concluding that federal agencies are responsible to Congress, particularly its committees, through budget review and oversight hearings); Bruff, Texas Constitution, supra note 153, at 1344–45 (1990); Bruff & Gellhorn, supra note 150, at 1420 (noting congressional control of federal agencies through the oversight and appropriations processes); Mashaw, supra note 153, at 185, 187, 200, 242, 248.
156 See Bruff, Texas Constitution, supra note 153, at 1345 (“To insist that only the legislature make law, only the executive implement statutes, and only the courts adjudicate controversies would destroy modern government.”); Elhauge, supra note 8, at 691–92.
157 See Page, Interest Groups, supra note 8, at 628–29.
158 Parker v. Brown, 317 U.S. 341, 350–51 (1943).
159 421 U.S. 773 (1975).
160 Id. at 776 n.2.
161 Id. at 789.
162 Id.
163 Id. at 790.
164 421 U.S. at 791.
165 Id. at 792.
166 See supra notes 124–127 and accompanying text.
167 421 U.S. at 791 n.21.
168 Id. at 785–90.
169 428 U.S. 579 (1976).
170 Id. at 582.
171 The Court’s plurality opinion focused on the fact that the defendant was a private entity, rather than a public official. See id. at 591. Although the Court since has repudiated this distinction, and it is now clear that the question of immunity turns on the nature of the conduct at issue rather than the identity of the defendant, Cantor has been interpreted by some as suggesting that only the state legislature could have adopted a Parker-immune anticompetitive policy. See Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48, 58–59 (1985); Page, Antitrust, supra note 8, at 1118; Page, Interest Groups, supra note 8, at 621–22.
172 See Cantor, 428 U.S. at 591.
173 As the Court stated:
In each of these cases the initiation and enforcement of the program under attack involved a mixture of private and public decision making. In each case, notwithstanding the state participation in the decision, the private party exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision. . . . There is nothing unjust in a conclusion that respondent’s participation in the decision is sufficiently significant to require that its conduct implementing the decision, like comparable conduct by unregulated businesses, conform to applicable federal law. Accordingly, even though there may be cases in which the State’s participation in a decision is so dominant that it would be unfair to hold a private party responsible for his conduct in implementing it, this record discloses no such unfairness.
Id. at 593–95.
174 Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136–38 (1961).
175 499 U.S. 365 (1991).
176 Id. at 383.
177 Id. at 375.
178 Id.
179 As the Supreme Court explained at the very outset of its opinion:
The distribution of electric light bulbs in Michigan is unregulated. [N]either the Michigan Legislature, nor the Commission, has ever made any specific investigation of the desirability of a lamp-exchange program or of its possible effect on competition in the light bulb market. Other utilities regulated by the Michigan Public Service Commission do not follow the practice of providing bulbs to their customers at no additional charge. The Commission’s approval of respondent’s decision to maintain such a program does not, therefore, implement any statewide policy relating to light bulbs. We infer that the State’s policy is neutral on the question whether a utility should, or should not, have such a program.
Cantor, 428 U.S. at 584–85 (emphasis added).
180 See id.
181 See Page, Antitrust, supra note 8, at 1115.
182 Id. at 1118.
183 Page, Interest Groups, supra note 8, at 621.
184 Id. at 621.
185 See supra notes 123–145 and accompanying text.
186 Cantor, 428 U.S. at 584 (emphasis added).
187 As discussed below, the Court’s subsequent decision in Southern Motor Carriers v. United States looks just the other way. See 471 U.S. at 48.
188 433 U.S. 350 (1977).
189 See id.
190 See id. at 361.
191 Id. at 360.
192 Id. at 362.
193 Bates, 433 U.S. at 362.
194 466 U.S. 558 (1984).
195 Id. at 567–68.
196 Id. at 568.
197 Id. at 570–72.
198 Id.
199 Hoover, 466 U.S. at 568–69 (emphasis added).
200 471 U.S. at 48.
201 See id.
202 Id. at 58–59.
203 Id. at 62.
204 Id. at 62–63.
205 Southern Motor Carriers, 471 U.S. at 63 (emphasis added).
206 Id. at 63–64.
207 Id.
208 The Southern Motor Carriers Court stated: “Agencies are created because they are able to deal with problems unforeseeable to, or outside the competence of the legislature. Requiring express authorization for every action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness.” Id. at 64.
209 See supra note 27.
210 See infra notes 211–233 and accompanying text.
211 745 F.2d 1281 (9th Cir. 1984).
212 Id. at 1283.
213 810 F.2d 869 (9th Cir. 1987).
214 Id. at 875–76.
215 Id.
216 Id.
217 96 F.3d 1193 (9th Cir. 1996).
218 See Cal. Pub. Util. Code § 745.5(e)(West 2000).
219 California CNG, 96 F.3d at 1195.
220 Id.
221 Id.
222 Id. at 1197–1200.
223 155 F.3d 59 (2d Cir. 1998).
224 See id. at 68–70.
225 See id.
226 Id. at 72.
227 The court stated that “there are compelling reasons for concluding that CRRA should be treated as the State itself rather than as a municipality . . . . CRRA was created to implement a uniform statewide waste disposal policy . . . . CRRA is not only a statewide entity that ‘undertakes state functions,’ it is ‘politically accountable to the State, and by extension to the electorate.’” Id. at 70–71. The court noted that CRRA’s board included the Commissioners of Transportation and Economic Development, the Secretary of the Office of Policy and Management, four gubernatorial appointees, and six legislative appointees. The chairman served at the pleasure of the Governor and any member of the board could be removed by the Governor for neglect or misconduct. See id.
228 Automated Salvage, 155 F.3d at 70.
229 Id. at 71.
230 187 F.3d 24 (1st Cir. 1999).
231 Id. at 27.
232 Id. at 28.
233 The court stated:
Broadly speaking, the Parker doctrine represents a judgment by the Supreme Court that, in regulating anticompetitive business conduct, Congress was not seeking to regulate the states themselves; and “the states” include their executive branches quite as much as their legislatures and their courts. The municipalities have been given less protection under Parker on the stated ground that technically speaking, they are not “the state”. . . .
Id. at 29.
234 See infra notes 221–241 and accompanying text.
235 Compare Page, Antitrust, supra note 8, with Southern Motor Carriers, 471 U.S. at 65, and Elhauge, supra note 8, at 692, and Wiley, supra note 8, at 731-32. As the Supreme Court recognized in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984):
In these cases, the Administrator’s interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies. Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases . . . . While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices–resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
Chevron, 467 U.S. at 866–67(citations omitted).
236 See supra notes 200–208 and accompanying text.
237 See supra notes 188–199 and accompanying text.
238 See supra notes 56–121 and accompanying text.
239 See supra notes 89–90, 111–113 and accompanying text.
240 See Chevron U.S.A., 467 U.S. at 844 (stating that an agency’s construction of its statutory authorization will be upheld if it is reasonable). For state decisions following Chevron, see generally Ahern v. Thomas, 733 A.2d 756 (Conn. 1999); Washington Metro. Area Transit Auth. v. District of Columbia Dept. of Employment Servs., 731 A.2d 845, 848 (D.C. 1999); Granite City Div. of Nat’l Steel Co. v. Illinois Pollution Control Bd., 613 N.E.2d 719, 733 (Ill. 1993); Dept. of Transp. v. Armacost, 532 A.2d 1056, 1061 (Md. 1987); State ex rel. Commr. of Ins. v. North Carolina Rate Bureau, 269 S.E.2d 547, 562 (N.C. 1980); Appalachian Power Co. v. State Tax Dept., 466 S.E.2d 424, 441 (W. Va. 1995); Alexander v. Anderson, 973 P.2d 884, 889 (N.M. Ct. App. 1999).
241 Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985).
242 Id. at 43.
243 Page, Interest Groups, supra note 8, at 643(“If it is apparent to all participants in the legislative process that the legislation displaces competition in the market affected, then the political process has worked and exemption should follow.”).
244 Southern Motor Carriers, 471 U.S. at 64.
245 See Parker, 317 U.S. at 351.
246 Specifically, Judge Posner stated:
[O]ften it is difficult to determine whether the state has a regulatory program designed to supplant the operation of the free market. It may have a regulatory program but one that can coexist happily with the full enforcement of federal antitrust principles because the program does not require the supplanting of competition . . . .
Hardy v. City Optical Inc., 39 F.3d 765, 768 (7th Cir. 1994).
247 See, e.g., Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 111 F.3d 1427 (9th Cir. 1997); California CNG, 96 F.3d at 1196–97; Yeager’s Fuel, 22 F.3d at 1268–69 (district court properly gave weight to report of Bureau of Conservation, Economic and Energy Planning of state Public Utilities Commission in determining what state energy conservation policy was); Nugget Hydroelectric v. Pacific Gas & Elec. Co., 981 F.2d 429 (9th Cir. 1992); Metro Mobil CTS, Inc. v. New Vector Communications, Inc., 661 F. Supp. 1504, 1512 (D. Ariz. 1987), aff’d on other grounds, 892 F.2d 62 (9th Cir. 1989); Health Care Equalization Comm. of Iowa Chiropractic Soc’y. v. Iowa Med. Soc’y., 501 F. Supp. 970, 991 (S.D. Iowa 1980), aff’d, 851 F.2d 1020 (8th Cir. 1988).
248 In Chevron, the Supreme Court held with respect to the analogous question in the context of federal administrative agencies that where Congress has not spoken directly to an issue, “the court does not simply impose its own construction on the statute . . . . Rather, . . . the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” 467 U.S. at 843 (citations omitted). Furthermore, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 843–44 (citations omitted)(emphasis added).
249 Page, Interest Groups, supra note 8, at 619 (arguing that the clear articulation requirement “reinforces representative political processes”); see also Inman & Rubinfeld, supra note 8, 1250, 1260–62 (arguing that the clear articulation requirement was developed to “maximize citizen participation”).
250 Page, Interest Groups, supra note 8, at 643.
251 Compare Southern Motor Carriers, 471 U.S. at 48, with Parker, 317 U.S. at 351–52.
252 See Page, Antitrust, supra note 8, at 1111–12 (“Elected representatives, however, have great incentives to defuse public controversies, which naturally arise under such a system, and often do so by transferring responsibility for actual resolution of important policy issues to administrative agencies under statutory commands to regulate ‘in the public interest.’”).
253 504 U.S. 621, 636 (1992). The Court stated:
States must accept political responsibility for actions they intend to undertake. It is quite a different matter, however, for federal law to compel a result that the States do not intend but for which they are held to account. Federalism serves to assign political accountability, not to obscure it. Neither federalism nor political responsibility is well served by a rule that essential national policies are displaced by state regulations intended to achieve more limited ends. For States which do choose to displace the free market with regulation, our insistence on real compliance with both parts of the Midcal test will serve to make clear that the State is responsible for the price fixing it has sanctioned and undertaken to control.
Id.
254 See infra notes 268–272.
255 Ticor, 504 U.S. at 349.
256 Id.
257 See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996); Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); Dellmuth v. Muth, 491 U.S. 223, 227–28 (1989); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242–43 (1985).
258 See also Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 110 (1998) (holding Congress must make its intent to allow state taxation of Indian lands “unmistakably clear”); Lindh v. Murphy, 521 U.S. 320, 325 (1997) (stating requirement for clear statement to authorize retroactive application of legislation assures that Congress has affirmatively considered the potential unfairness involved); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (stating that federal preemption of areas traditionally subject to state police powers will not be found unless that is the clear and manifest purpose of Congress).
259 Cipollone, 505 U.S. at 516.
260 Cf. Michigan v. Long, 463 U.S. 1032 (1983) (imposing a clear statement rule on the highest court of the state to insulate its decisions from judicial review on the basis of an adequate and independent state ground).
261 See supra notes 142–145.
262 See Hybud Equip. Corp. v. City of Akron, 742 F.2d 949, 963 (6th Cir. 1984) (stating that “it would be extremely impractical to limit ‘active state supervision’ to the oversight by [the state legislature or Supreme Court]”).
263 Southern Motor Carriers, 471 U.S. at 65; see also California CNG, 96 F.3d at 1193 (stating that agency supervision of utility’s application to spend ratepayer funds on competitive activity satisfied active supervision requirement); Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609 (11th Cir. 1995) (holding that Public Service Commission approval of territorial allocation by utilities satisfied requirement).
264 See supra note 56 and accompanying text.
265 Patrick v. Burget, 486 U.S. 94, 101 (1988) (citing Southern Motor Carriers, 471 U.S. at 51).
266 See, e.g., Ticor, 504 U.S. at 636 (stating that Midcal’s two elements both are directed to ensuring that anticompetitive conduct operates because of a deliberate state policy); Town of Hallie, 471 U.S. at 46–47 (stating that the active supervision requirement serves the “evidentiary function” of ensuring that private conduct is pursuant to state policy).
267 See, e.g., Jorde, supra note 8, 248–49; Page, Antitrust, supra note 8, at 1125–29.
268 See supra notes 55–65 and accompanying text.
269 See Tom Hudson & Assocs. v. City of Chula Vista, 746 F.2d 1370, 1374 (9th Cir. 1984); see also Tri-State Rubbish, Inc. v. Waste Management, Inc., 998 F.2d 1073, 1079 (1st Cir. 1993). But see Riverview Invs., Inc. v. Ottawa Cmty. Improvement Corp., 774 F.2d 162, 163 (6th Cir. 1985) (altering earlier order and instructing district court to determine on remand whether the state—as opposed to the city—had actively supervised a private defendant’s conduct pursuant to municipal regulation).
270 See supra notes 109–110 and accompanying text.
271 See, e.g., California CNG, 96 F.3d at 1199–1200 (finding clear articulation of state policy in general CPUC guidelines); Nugget Hydroelectric, 981 F.2d at 434–35 (same); see also TEC Cogeneration, Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1567 (11th Cir. 1996); Yeager’s Fuel, Inc. v. Pennsylvania Power & Light Co., 22 F.3d 1260, 1268 (3d Cir. 1994).
272 See Nugget Hydroelectric, 981 F.2d at 435.
273 California CNG, 96 F.3d at 1197–99, 1202 (finding both clear articulation and active supervision requirements satisfied by CPUC approval of specific ratepayer applications).
274 661 F. Supp. at 1504.
275 Id. at 1510–11.
276 Id. at 1511.
277 Id. at 1510.
278 Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1967) (holding that the NLRB may announce new policies in adjudicatory proceedings); SEC v. Chenery Corp., 318 U.S. 80 (1943) (same); see also 1 Kenneth C. Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 6.8 (3d ed. 1994).
279 Metro Mobil, 661 F. Supp. at 1512.
280 111 F.3d at 1427.
281 The court stated:
[S]ince the Oregon statute speaks solely of authorizing the OPUC to approve exclusive service territories, the state’s clearly articulated policy is to have the OPUC decide whether to sanction anticompetitive conduct. It follows, therefore, that we must look to the decisions of the OPUC to determine whether PGE’s conduct was part of a clearly articulated state policy.
Id. at 1437 n.8 (emphasis added).
282 Id. at 1441–12.
283 Id.
284 See id.
285 Chevron, 467 U.S. at 843–45.
286 Praxair, 64 F.3d at 613.
287 Id. at 613.
288 Id. at 613–14. The order in question approved several territorial agreements between the utilities as shown on maps attached to the agreements. A map of the county in question was not included, but the companies’ approved application to the Commission included a composite map showing a boundary that included the county. Id.
289 Id.
290 111 F.3d at 1427.
291 Id. at 1433.
292 Id.
293 Id.
294 Id. at 1434.
295 Columbia Steel Casting, 111 F.3d at 1434.
296 Id. at 1435.
297 Id.
298 Id. at 1437.
299 Id. at 1440, 1441–42.
300 Columbia Steel Casting, 111 F.3d at 1442.
301 See Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 60 F.3d 1390 (9th Cir. 1995), withdrawn, 103 F.3d 1446 (9th Cir. 1996), reh’g denied, 111 F.3d 1427 (9th Cir. 1996), cert. denied, 523 U.S. 1112 (1998).
302 Columbia Steel Casting, 111 F.3d at 1442–44. See also California CNG, 96 F.3d at 1193, discussed supra notes 217–222 and accompanying text.
303 See supra note 199 and accompanying text.
304 See Columbia Steel Casting, 111 F.3d at 1440.
305 Id. at 1441–42.
306 See generally, e.g., Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908).
307 See, e.g., Davis & Pierce, supra note 278, at § 6.1.
308 See supra notes 55–73 and accompanying text.
309 See, e.g., Davis & Pierce, supra note 278, at § 6.8; see also California CNG, 96 F.3d at 1197–1200.
310 See supra notes 209–238 and accompanying text.
311 See supra notes 74–113 and accompanying text.
312 In some settings, declarations of statewide policy by a state agency might be implemented in particular transactions by municipalities or other local governmental units. Cf. Lender’s Serv., Inc. v. Dayton Bar Ass’n, 758 F. Supp. 429 (S.D. Ohio 1991) (holding that local bar association’s implementation of policy on unauthorized practice of law adopted by Ohio Supreme Court immune). As the Supreme Court has indicated in its municipal action decisions, those local implementations of state policy should themselves be antitrust immune without any further requirement of active supervision by the state agency. The Supreme Court’s rationale for this result, however, is unsatisfactory. State-wide supervision is unnecessary in such cases, not because local governmental units are more likely to act in the “public interest” than private actors so far as their anticompetitive commercial arrangements are concerned, but because those local units of state government possess the authority, as a matter of state law, to determine the particulars of previously articulated state policy as it is locally applied.
313 See, e.g., Litton Systems, Inc. v. American Tel. & Tel. Co., 700 F. 2d 785, 807 (2d Cir. 1983); Capital Freight Serv., Inc. v. Trailer Marine Transp. Corp., 704 F. Supp. 1190, 1193 (S.D.N.Y. 1988).
314 Even where the tariff is ultimately approved by the agency, claims of antitrust immunity for implementation of the tariff or arrangement before it has been approved should be rejected. This result is compelled by the norm of prospectivity underlying Parker immunity doctrine and by the Supreme Court’s clear holdings that state ratification of anticompetitive private conduct cannot provide a basis for immunity.
315 404 U.S. 508 (1972).
316 Omni, 499 U.S. at 383.
317 700 F.2d at 785.
318 Id. at 808–09.
319 Id. at 807.
320 California CNG, 96 F.3d at 1201.
321 111 F.3d at 1446 (“PGE is not being held liable for filing the application that resulted in the 1972 Order. PGE is being held liable for agreeing with PP & L to replace competition with area monopolies in the Portland market.”).
322 See City of Kirkwood v. Union Elec. Co., 671 F.2d 1173, 1179–80 (8th Cir. 1982), cert. denied, 459 U.S. 1170 (1983); City of Mishawaka v. American Elec. Power Co., 616 F.2d 976, 985 (7th Cir. 1980), cert. denied, 449 U.S. 1096 (1981); City of Mishawaka v. Indiana & Mich. Elec. Co., 560 F.2d 1314, 1318–21 (7th Cir. 1977), cert. denied, 436 U.S. 922 (1978). But see Norcen Energy Resource Ltd. v. Pacific Gas & Elec. Co., 1994–2 Trade Cas. (CCH) ¶ 70, 851 (N.D. Cal. 1994). In Norcen, the court declined to recognize a “price squeeze” exception to Noerr immunity. The court further held that Parker protected the defendant’s activities, because both the “postage stamp rates” and “crossover ban” for intrastate gas transportation at issue in that case were within the regulatory jurisdiction of the CPUC. This is unlike the situation in City of Kirkwood, where defendants were alleged to have been able to manipulate the regulatory structure to impose a price squeeze by virtue of the fact that the wholesale rates at issue were within the regulatory jurisdiction of FERC, whereas the retail rates were within the jurisdiction of the state.
323 Cf. Cine 42nd Street Theatre Corp. v. Nederlander Org., Inc., 790 F.2d 1032, 1046–47 (2d Cir. 1986) (stating that immunity extends to impact of state-approved conduct in unregulated markets where those effects were clearly foreseeable); Metro Mobil, 661 F. Supp. at 1504 (stating that Parker immunity extends to price squeeze effects of regulated wholesale rates even though retail rates not regulated where the state commission took account of those effects in approving wholesale rates); Sonitrol of Fresno, Inc. v. American Tel. & Telegraph Co., 629 F. Supp. 1089, 1096 (D.D.C. 1986) (stating that immunity extends to impact of state-approved conduct in unregulated markets where those effects were clearly foreseeable).
324 428 U.S. at 579.
325 Id. at 585 (emphasis added).
326 504 U.S. at 621.
327 Id. at 639–40.
328 Id. at 634–35 (emphasis added).
329 Id. at 629.
330 Id. at 638.
331 See Phonetele, Inc. v. American Tel. & Tel. Co., 664 F.2d 716, 733 (9th Cir. 1981) (“The FCC does not expressly approve or adopt as agency policy the content of every tariff it permits to become effective.”).
332 Southern Motor Carriers, 471 U.S. at 63.
333 Ticor, 504 U.S. at 629.
334 Southern Motor Carriers, 471 U.S. at 63–65.
335 See, e.g., Parks v. Watson, 716 F.2d 646 (9th Cir. 1983); Corey v. Look, 641 F.2d 32 (1st Cir. 1981); Feminist Women’s Health Ctr., Inc. v. Mohammad, 586 F.2d 530 (5th Cir. 1978).
336 Compare Ex parte Young, 209 U.S. 123 (1908), with Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
337 See generally Home Tel. & Telegraph, Co. v. City of Los Angeles, 227 U.S. 278 (1913).
338 See generally, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Monell v. Department of Soc. Servs., 436 U.S. 658 (1978); Monroe v. Pape, 365 U.S. 167 (1961).
339 Compare Pierson v. Ray, 386 U.S. 547 (1967), with Harlow v. Fitzgerald, 457 U.S. 800 (1982).
340 See 1 Phillip Areeda & Herbert Hovenkamp, Antitrust Law 424 (rev. ed. 1997).
341 Id. at 429, 437, 465–66.
342 See, e.g., Nugget Hydroelectric, 981 F.2d at 434–35; Traweek v. City & County of San Francisco, 920 F.2d 589, 592 (9th Cir. 1990); Oberndorf v. City & County of Denver, 900 F.2d 1434 (10th Cir. 1990); Boone v. Redevelopment Agency, 841 F.2d 886, 891 (9th Cir. 1988); Kern-Tulare Water Dist. v. City of Bakersfield, 828 F.2d 514 (9th Cir. 1987); Hancock Indus. v. Schaeffer, 811 F.2d 225 (3d Cir. 1987).
343 499 U.S. at 365.
344 Id. at 373.
345 Fisichelli v. Town of Methuen, 956 F.2d 12, 14 (1st Cir. 1992).
346 See, e.g., Yeager’s Fuel, 22 F.3d at 1269 (holding that fact that state PUC later prohibited parts of energy conservation program that utility reasonably had concluded were proper at the time that it acted does not negate Parker immunity); Lease Lights, Inc. v. Public Serv. Co., 849 F.2d 1330 (10th Cir. 1988) (recognizing defense where party reasonably relies on exercise of state authority later determined to be unauthorized).
347 15 U.S.C. §§ 34–36 (1994).
348 See, e.g., Litton Sys., Inc. v. Southwestern Bell Tel. Co., 539 F.2d 418, 423–24 (5th Cir. 1976). But see Industrial Communications Sys., Inc. v. Pacific Tel. & Telegraph Co., 505 F.2d 152 (9th Cir. 1974) (ordering primary jurisdiction reference to state PUC). See generally Floyd & Sullivan, supra note 88, at § 3.4.11.
349 See generally Floyd & Sullivan, supra note 88, at § 2.6.
350 See supra note 341.
351 Cf. Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989, 991 (1999) (arguing that Chevron deference should not be accorded to agency interpretations of their jurisdictional authority).
352 See, e.g., Nugget Hydroelectric, 981 F.2d at 434–35; Traweek, 920 F.2d at 592; Oberndorf, 900 F.2d at 1434; Boone, 841 F.2d at 891; Kern-Tulare, 828 F.2d at 514; Hancock Indus., 811 F.2d at 225.
353 See, e.g, Kern-Tulare, 828 F.2d at 514; Falls Chase Special Taxing Dist. v. City of Tallahassee, 788 F.2d 711, 713 (11th Cir. 1986).
354 American Tel. & Telegraph Co. v. North Am. Indus., 772 F. Supp. 777 (S.D.N.Y. 1991) (finding that New York legislature had not expressed policy to displace competition with regulation in the provision of pay phone service where it had only imposed minimum service requirements and otherwise left pay phones unregulated), amended, 783 F. Supp. 810 (S.D.N.Y. 1991) (pervasive state regulation of interconnection does not authorize discriminatory denial of interconnection); Laidlaw Waste Sys., Inc. v. City of Fort Smith, 742 F. Supp. 540 (W.D. Ark. 1990) (holding that even though city had authority to enter waste disposal business and grant exclusive franchises, it exceeded authority in a way not contemplated by the legislature when it chose to compete with a private company and charge it higher landfill rates than it charged itself; the legislature did not intend to authorize unfair competition).
355 See, e.g., Cost Management Servs., Inc. v. Washington Natural Gas Co., 99 F.3d 937, 942 (9th Cir. 1996) (stating that defendant utility’s off-tariff pricing of natural gas was not immune if, as plaintiff alleged, it was prohibited by state law); Pine Ridge Recycling, Inc. v. Butts County, 855 F. Supp. 1264 (M.D. Ga. 1994) (holding that state law did not allow local governments to exclude all competition in waste disposal market).
356 Goldfarb, 421 U.S. at 773.
357 Id. at 776, 789–90.
358 See Yeager’s Fuel, 22 F.3d at 1269 (holding that fact that state public utilities commission later prohibited parts of energy conservation program that utility had reasonably concluded were proper at the time that it acted does not negate Parker immunity); Ticor Title Ins. Co. v. Federal Trade Comm’n, 922 F.2d 1122 (3rd Cir. 1990) (stating that even if regulation of attorney fees related to title insurance transactions not authorized, private defendants should be immune from damages liability because they reasonably relied on apparently lawful assertion of regulatory authority), rev’d, 504 U.S. 621 (1992).
359 See, e.g., Vartan v. City of Harrisburg, 661 F. Supp. 596, 602 (M.D. Penn. 1987) (relying on Eleventh Amendment precedents in determining that a redevelopment authority was a municipal rather than a state agency).
360 See supra note 45.
361 15 U.S.C. § 35(a) (1994).
362 H.R. Rep. No. 965, reprinted in 1984 U.S.C.C.A.N. 4602, 4620–21. See, e.g., IT&E Overseas, Inc. v. RCA Global Communications, Inc., 747 F. Supp. 6, 13–14 (D.D.C. 1990) (concluding that the Guam Telephone Authority was not protected by the Act because it exercised statewide jurisdiction). See generally Floyd & Sullivan, supra note 88, at § 4.2.
363 See, e.g., Earles v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033 (5th Cir. 1998) (treating the board as a state agency for both Eleventh Amendment and Parker purposes even though its membership was composed entirely of competing members of the profession); Bankers Ins. Co. v. Florida Residential Property & Casualty Joint Underwriting Ass’n, 137 F.3d 1293 (11th Cir. 1998) (treating association as a public entity despite its private membership); Washington State Elec. Contractors Ass’n v. Forrest, 930 F.2d 736 (9th Cir. 1991) (expressing doubt about whether council that enforced minimum wages for apprentices in the performance of electrical contracts and had both public and private members was a state agency).
364 See, e.g., Tri-State Rubbish, Inc. v. Waste Mgt., Inc., 998 F.2d 1073 (1st Cir. 1993) (treating a nonprofit, nonstock corporation formed by twelve municipalities to assist in waste disposal as a public actor where its officers, by statute, were declared to be municipal officers); Riverview Inv., Inc. v. Ottawa Cmty. Improvement Corp., 899 F.2d 474 (6th Cir. 1990) (treating local community improvement corporation having private members and not subject to municipal control as a private entity). See generally Floyd & Sullivan, supra note 88, at § 4.1.7 (suggesting that the focus should be on whether the actions in question “are the actions of a body or entity created by the state that exercises policymaking or administrative authority officially conferred by the state and that is officially accountable for its actions to the state,” and that in making this determination the court should consider “(1) whether the entity in question has been publicly or privately created, (2) whether its members are publicly or privately appointed, (3) whether they are subject to the constraints and regulations that apply to public employees generally, (4) the extent to which the entity exercises functions specifically delegated to it by state law, and (5) the extent to which its actions, even though not actively supervised, are subject to ultimate review and control by the state”).
365 See supra note 9; see also Areeda & Hovenkamp, supra note 340, at 410–11 (suggesting that the “state itself” designation for agencies entitled to ipso facto immunity should be reserved for “government agencies that are both statewide in their jurisdiction and have no particular susceptibility to capture by a particular business group” and denied to “agencies that are dominated by members of the regulated industry”).
366 See Elhauge, supra note 8, at 703–05 (suggesting that Parker immunity may be denied to the actions of a state board consisting of affected producer, consumer, or labor interests on the ground that they are financially interested in the result).
367 See supra notes 343–345 and accompanying text.