State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co.
William H. Page
University of Florida - Fredric G. Levin College of Law
John E. Lopatka
Penn State Law
June 9, 2009
Supreme Court Economic Review, Vol. 3, p. 189, 1993
In FTC v. Ticor Title Insurance, the Supreme Court denied antitrust immunity to insurers that had participated in state-sanctioned rate-setting activities. Applying the two-part Midcal test, the Court held for the first time that a state agency had failed to "actively supervise" private action under a clearly articulated state policy. In this 1993 article, we propose a theory of state action that accounts for the values that the Court invoked. Under this theory, federalism is a background norm that counsels a narrow interpretation of the Sherman Act to permit state regulation that is not a naked repeal of antitrust rules. Displacement of antitrust is immune if it is ancillary to a positive regulatory program in which state actors control discretion to harm consumers, e.g., by fixing prices.
Number of Pages in PDF File: 49
Keywords: K21, K41, K43, L41, L51Accepted Paper Series
Date posted: June 11, 2009
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