This Article has suggested that courts adopt an intermediate level of scrutiny, between per se and Rule of Reason analysis. Under this analysis, a rebuttable presumption of illegality attaches to those practices which in other contexts are per se illegal. The weight of this presumption varies with the familiarity of the court with the restraint, its similarity to traditional per se conduct, and the strength of the procompetitive justification.This analytical approach is desirable for two reasons. First,courts are reluctant to apply commercial per se rules of illegality to professional restraints, and with good reason. Professional practices do differ from purely commercial transactions. At the same time, however, some professionals do engage in highly anticompetitive practices. Courts ought to have a test for assessing these practices that is less cumbersome than full-blown Rule of Reason analysis. Second, a truly competitive market for health services will provide better assurance of high quality care and reasonable prices than a market controlled by dominant professional groups. Competition will create incentives for providers and insurers to disseminate more information to consumers--information about prices, availability, billing procedures, and provider qualifications. Also,competition may encourage development of alternative forms of delivering services, particularly those that have the potential for increasing efficiency and reducing costs. By focusing on the procompetitive effects of professionally imposed restraints, courts will be able to review objectively both the economic and social consequences of the challenged activity. An intermediate level of review is not a radical departure from existing case law. Nevertheless, recognizing that it exists and spelling out how it should be conducted is important for the further development of the law in this area.
Robert F. Leibenluft and Michael R. Pollard,
Antitrust Scrutiny of the Health Professions: Developing a Framework for Assessing Private Restraints,
34 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol34/iss4/2