Emory Law Journal


This Comment argues that federal courts and the FTC should narrowly construe a recent Supreme Court decision restricting the scope of the antitrust state-action doctrine. In North Carolina State Board of Dental Examiners, the Supreme Court held that state boards controlled by active market participants must receive active state supervision to invoke state-action antitrust immunity. Notably, the majority opinion did not provide a test for determining whether active market participants control a state agency. Nor did it offer guidance on the adequate level of supervision states must provide to satisfy the active supervision requirement. States and courts can look to an FTC Staff Guidance Statement and the Parker together to suggest that N.C. Dental is amenable to an interpretation that does not eviscerate the antitrust state-action doctrine. What¿s more, strong policy reasons support an interpretation of N.C. Dental that does not unduly trammel states¿ rights.