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Eminent Need: Proposing a Market Participant Exception for Municipal Parket Immunity

39 Pages Posted: 8 Jun 2012  

Scott Weese

Wood LLP

Date Written: June 1, 2011

Abstract

A township is using its eminent domain powers to become a monopsony in the real estate market for the designated area. The township's monopsony power is then being exploited to create a price-fixing scheme that would violate antitrust laws, either as a per se violation under Section 1 of the Sherman Antitrust Act, or as a monopolizing or attempted monopolizing offense under Section 2. Under the Sherman Act, affected residents could force the township to appraise each property individually and pay the full market value; if the township refused, they would be subject to the treble damage penalty, erasing any possible advantage of abusing its monopsony power. As the law currently stands, however, a township is immune from suit under the Parker v. Brown decision and its progeny. This Article will use the real-life example of Mount Holly, New Jersey, and the story of one affected resident to illustrate the need for a market participant exception to Parker immunity, such that when a municipality is participating in the market for a good itself, as opposed to merely regulating that market, the Sherman Act should apply.

Keywords: Eminent Domain, Antitrust, Parker Immunity, Municipality, Monopsony, Price-Fixing

Suggested Citation

Weese, Scott, Eminent Need: Proposing a Market Participant Exception for Municipal Parket Immunity (June 1, 2011). Cardozo Public Law, Policy and Ethics Journal, Vol. 9, No. 523, 2011. Available at SSRN: https://ssrn.com/abstract=2079679

Scott Bradley Weese (Contact Author)

Wood LLP ( email )

333 Sacramento Street
San Francisco, CA 94111
United States

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