State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co.

Supreme Court Economic Review, Vol. 3, p. 189, 1993

49 Pages Posted: 11 Jun 2009

See all articles by William H. Page

William H. Page

University of Florida - Levin College of Law

John E. Lopatka

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

Date Written: June 9, 2009

Abstract

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.

Keywords: K21, K41, K43, L41, L51

Suggested Citation

Page, William Hepburn and Lopatka, John E., State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co. (June 9, 2009). Supreme Court Economic Review, Vol. 3, p. 189, 1993. Available at SSRN: https://ssrn.com/abstract=1416988

William Hepburn Page (Contact Author)

University of Florida - Levin College of Law ( email )

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

John E. Lopatka

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

Lewis Katz Building
University Park, PA 16802
United States

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