State Action Immunity and Section 5 of the FTC Act

59 Pages Posted: 10 Apr 2016

See all articles by Daniel A. Crane

Daniel A. Crane

University of Michigan Law School

Adam Hester

University of Michigan Law School, Law School - JD Candidate Author

Date Written: April 4, 2016

Abstract

The state action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine on the observation that no evidence of a Congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal Court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might not be bound by the Parker doctrine but instead enjoys “superior preemption” authority under Section 5 of the FTC Act. Drawing on the FTC Act’s legislative history and its institutional distinctiveness from Sherman Act enforcement, this Article makes an affirmative case for FTC superior preemption power over anticompetitive state laws.

JEL Classification: K34

Suggested Citation

Crane, Daniel A. and Hester, Adam, State Action Immunity and Section 5 of the FTC Act (April 4, 2016). Michigan Law Review, Vol. 115, No. 3, 2016; U of Michigan Law & Econ Research Paper No. 16-006. Available at SSRN: https://ssrn.com/abstract=2758838

Daniel A. Crane (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-615-2622 (Phone)

Adam Hester

University of Michigan Law School, Law School - JD Candidate Author ( email )

Ann Arbor, MI
United States

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