This Article examines in detail the policies underlying these recent Supreme Court decisions interpreting the Sherman Act and shows that they have equal applicability to FTC enforcement of the Clayton and FTC Acts. The Article identifies the factual criteria used by the courts for distinguishing state and private conduct that is subject to the antitrust laws, and to congressional commerce dictates, from sovereign state regulatory conduct that is immune from antitrust sanction. The Article then focuses on the impact of Usery, which provides constitutional support for the so-called state action doctrine that was originated in Parker v. Brown. Finally, we conclude that the state action doctrine is not limited to the confines of the Sherman, Clayton, or FTC Acts but may well stand as a constitutional limitation on the substantive, economic powers of Congress and its regulatory agencies.
Mark L. Davidson and Robert D. Butters,
Parker and Usery: Portended Constitutional Limits on the Federal Interdiction of Anticompetitive State Action,
31 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol31/iss3/2