Plain Ambiguities in the Clear Articulation Requirement for State Action Antitrust Immunity: The Case of State Agencies

Abstract

This Article focuses on the application of the state action antitrust inimunity doctrine of Parker v. Brown to the regulatory programs of state administrative agencies having statewide jurisdiction. It concludes that state agencies should be subject to significantly different requirements for antitrust immunity than are local governmental units. This Article also addresses unresolved issues that frequently recur in the context of state administrative action, such as the effect of retroactive intetpretations of state policy by a state agency, whether the clear articulation and active supervision requirements for antitrust immunity play any separate role in the context of administrative policy making, and whether any distinctions should be drawn among the processes of rulemaking, adjudication, and tariff approval in applying the Parker doctrine.