State Action and the Meaning of Agreement Under the Sherman Act: An Approach to Hybrid Restraints

Yale Journal on Regulation, Vol. 20, p. 269, 2003

56 Pages Posted: 11 Jun 2009

See all articles by John E. Lopatka

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law

William H. Page

University of Florida - Levin College of Law

Date Written: June 9, 2009

Abstract

Under the Midcal test for state-action immunity from the federal antitrust laws, a state must clearly articulate its policy to displace competition and must actively supervise any private conduct pursuant to the policy. But state action need not meet these requirements, if it is unilateral and therefore does not not conflict with Section 1. Only if the state-authorized restraint is hybrid, combining state and private action in a way that resembles a prohibited agreement, need the restraint satisfy Midcal. In this 2003 article, we argue that a unilateral restraint is one in which government actors define the extent of consumer harm, while a hybrid restraint is one that gives private actors discretion to harm consumers in a way that resembles an antitrust violation. Under this definition, state laws that facilitate tacit collusion and serve no competitively benign purpose conflict with Section 1.

Keywords: antitrust, hybrid restraints, tacit collusion, Sherman Act

JEL Classification: K21, K23, K40, L51, L51

Suggested Citation

Lopatka, John E. and Page, William Hepburn, State Action and the Meaning of Agreement Under the Sherman Act: An Approach to Hybrid Restraints (June 9, 2009). Yale Journal on Regulation, Vol. 20, p. 269, 2003. Available at SSRN: https://ssrn.com/abstract=1416987

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

William Hepburn Page (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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