The Antitrust Implications of Licensed Occupations Choosing Their Own Exclusive Jurisdiction

Abstract

State and local government restraints, with a few exceptions, receive little attention from the antitrust laws because they are limited by the "state action immunity" doctrine. These public restraints take many forms, from limiting the number of taxicab licenses in a city to professional advertising restrictions to actual price or output limitations. This article focuses on state and local licensing restrictions. In doing so, it examines two instances where state boards that are predominantly made up of licensed occupations enact policies that expand the sphere of commerce that is reserved by law to these occupations. These examples present compelling circumstances for antitrust regulation because the deciding state entity is dominated by members with private incentives to expand the scope of their occupation to the detriment of consumers.

Keywords: antitrust, regulation, anticompetitive, licensing, state action immunity, competition, administrative agencies, state boards, monopoly, federalism, Midcal, FTC, Federal Trade Commission