Antitrust Immunity: State Action and Federalism, Petitioning and the First Amendment

56 Pages Posted: 4 Aug 2012

See all articles by David McGowan

David McGowan

University of San Diego School of Law

Mark A. Lemley

Stanford Law School

Date Written: 1994


In recent years, the United States Supreme Court has focused increasing attention on two doctrines that provide immunity from antitrust liability for certain anticompetitive activity: the state action doctrine and the petitioning immunity doctrine (sometimes known as the Noerr-Pennington doctrine, after the two cases that established it). These doctrines have been the subject of seven Supreme Court decisions in as many years. In spite of (or perhaps because of) the Court’s numerous recent decisions, there remains a great deal of confusion about the source and the scope of these doctrines. This Article attempts to clarify both doctrines.

The Supreme Court and a number of commentators contend that the antitrust immunity doctrines are the product of statutory interpretation of the antitrust laws themselves. The Court contends that petitioning and state action are “essentially dissimilar” to the types of business activity the antitrust laws were designed to regulate. This Article disagrees. Both petitioning and state action present precisely the sorts of problems with which the antitrust laws are concerned — exploitation of consumers through the charging of supracompetitive prices.

To determine the source of antitrust immunity, the Court must look beyond the antitrust laws to the constitutional principles that are implicated by the doctrines. For the state action doctrine, the constitutional principle at stake is largely one of federalism, and the more general democratic principles embodied in the Court’s non-delegation jurisprudence. For the petitioning immunity doctrine, the First Amendment protection of speech and petitioning provides the relevant principles. After examining the source of the antitrust immunity doctrines, this Article considers the appropriate scope of those doctrines in light of the constitutional principles at issue.

Suggested Citation

McGowan, David and Lemley, Mark A., Antitrust Immunity: State Action and Federalism, Petitioning and the First Amendment (1994). Harvard Journal of Law and Public Policy, Vol. 17, No. 2, Spring 1994; Stanford Public Law Working Paper No. 2123697. Available at SSRN:

David McGowan

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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