Guilds at the Millennium: Antitrust and the Professions 2002 AALS Section on Antitrust and Economic Regulation
Loyola Consumer Law Review, Vol. 14, p. 377, 2002
17 Pages Posted: 7 Aug 2008
Date Written: August 4, 2008
The papers published in this symposium issue were originally presented at the meeting of the Section on Antitrust and Economic Regulation of the Association of American Law Schools, at the Association Annual Conference, held in January 2002, in Washington, D.C. The audience for this conference was those academics who research, teach and write in the area of antitrust and competition law, business regulation or economics rather than legal practitioners or members of the various professions that are the subject of these articles. The papers, however, are not solely theoretical or limited to a law and economics analysis, but analyze the role of competition among professionals in three concrete factual scenarios. Section Chair, Professor Spencer Weber Waller describes the subject of the program, "the inherent conflict between self-regulation of the professions and its potential abuse for anti-competitive purposes" as both a longstanding and important issue, recognizing that "the key question is whether a profession's self-regulation serves the public interest in preserving professional quality or is a means to exclude competition and/or maintain anti-competitive prices." This topic is particularly timely in light of the 1999 Supreme Court decision in California Dental Association, a government case challenging a non-profit association of dental societies ethical rules limiting advertising by member dentists. The overall theme of the AALS program was an examination the state of competition in aspects of three different professions; the practice and business of medicine, legal education, and the practice of antitrust law. Thus, all of these papers presented creative new approaches to longstanding issues surrounding antitrust treatment of professionals and raised provocative questions. Future articles promise to add content to theory, elaborate on ethodology, and guide scholars and courts in the application of substantive standards to balance the economic and competitive benefits and harms of competition among professionals. The issue of competition and self regulation by professionals actually involves several subsidiary questions including, whether the practice of a profession even onstitutes "trade or commerce" within the meaning of the Sherman Act; what constitutes a profession and, subsidiarily, the meaning of "practice" of a profession; whether and under what circumstances state regulation of professions and professional associations is exempt from the antitrust laws; and finally, whether professionals are subject to different substantive antitrust standards in any circumstances, in other words, whether professionals enjoy special antitrust treatment solely by virtue of their status. These are not trivial questions and the correct resolutions are, in many respects, not intuitively obvious. It is well established, however, that competition, whether for services or goods, is a fundamental goal of antitrust, and agreements to fix prices or restrict output are, and ought to be, subject to condemnation.
Suggested Citation: Suggested Citation