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

In recent years, the United States Supreme Court has focused increasingattention on two doctrines that provide immunity from antitrust liabilityfor certain anticompetitive activity: the state action doctrine and thepetitioning immunity doctrine (sometimes known as the Noerr-Penningtondoctrine, after the two cases that established it). These doctrines havebeen the subject of seven Supreme Court decisions in as many years. Inspite of (or perhaps because of) the Court’s numerous recent decisions,there remains a great deal of confusion about the source and the scope ofthese doctrines. This Article attempts to clarify both doctrines.The Supreme Court and a number of commentators contend that the antitrustimmunity doctrines are the product of statutory interpretation of theantitrust laws themselves. The Court contends that petitioning and stateaction are “essentially dissimilar” to the types of business activity theantitrust laws were designed to regulate. This Article disagrees. Bothpetitioning and state action present precisely the sorts of problems withwhich the antitrust laws are concerned — exploitation of consumers throughthe charging of supracompetitive prices.To determine the source of antitrust immunity, the Court must look beyondthe antitrust laws to the constitutional principles that are implicated bythe doctrines. For the state action doctrine, the constitutional principleat stake is largely one of federalism, and the more general democraticprinciples embodied in the Court’s non-delegation jurisprudence. For thepetitioning immunity doctrine, the First Amendment protection of speech andpetitioning provides the relevant principles. After examining the source ofthe antitrust immunity doctrines, this Article considers the appropriatescope of those doctrines in light of the constitutional principles at issue.