State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co.

Supreme Court Economic Review, Vol. 3, p. 189, 1993

49 Pages Posted: 11 Jun 2009

See all articles by William H. Page

William H. Page

University of Florida Levin College of Law

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law

Date Written: June 9, 2009

Abstract

In FTC v. Ticor Title Insurance, the Supreme Court denied antitrust immunity to insurers that had participated in state-sanctioned rate-setting activities. Applying the two-part Midcal test, the Court held for the first time that a state agency had failed to "actively supervise" private action under a clearly articulated state policy. In this 1993 article, we propose a theory of state action that accounts for the values that the Court invoked. Under this theory, federalism is a background norm that counsels a narrow interpretation of the Sherman Act to permit state regulation that is not a naked repeal of antitrust rules. Displacement of antitrust is immune if it is ancillary to a positive regulatory program in which state actors control discretion to harm consumers, e.g., by fixing prices.

Keywords: K21, K41, K43, L41, L51

Suggested Citation

Page, William Hepburn and Lopatka, John E., State Regulation in the Shadow of Antitrust: FTC v. Ticor Title Insurance Co. (June 9, 2009). Supreme Court Economic Review, Vol. 3, p. 189, 1993, Available at SSRN: https://ssrn.com/abstract=1416988

William Hepburn Page (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
78
Abstract Views
939
Rank
559,388
PlumX Metrics