Part Four: Antitrust Immunities at the Crossroads: The Current Status of the Noerr and State Action Doctrines

Wednesday, January 1st, 2003 at 12:00 am by David S. Copeland, Stephen J. Elliot, Ankur Kapoor, Lori Leskin, Ian Linker, Steven Rosenstein
David S. Copeland, Stephen J. Elliot, Ankur Kapoor, Lori Leskin, Ian Linker, Steven Rosenstein, Part Four: Antitrust Immunities at the Crossroads: The Current Status of the Noerr and State Action Doctrines, 2003 Colum. Bus. L. Rev. 547

In general, the United States Supreme Court and other federal courts have disfavored the concept of immunity for conduct that would otherwise violate the federal antitrust laws. Nevertheless, the Supreme Court has long recognized two doctrines that may provide immunity from the antitrust laws for restraints of trade that are the result of governmental action, even where that action has been requested or implemented by a private party. These immunities are often referred to as the Noerr and state action doctrines. Although the doctrines are somewhat related, they are based on analytically distinct policy considerations and governed by different legal standards.

The accompanying article by Chairman Timothy Muris of the Federal Trade Commission (“ftc”), based on his December 10, 2002 speech at the annual Milton Handler Antitrust Review at the Association of the Bar of the City of New York, raises important concerns about these doctrines and makes certain proposals regarding their application. The purpose of this Article is to discuss the historical origin, development, and current application of the Noerr and state action immunities in light of the reconsideration proposed by ftc Chairman Muris.

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