Clarifying State Action Immunity under the Antitrust Laws: FTC v. Phoebe Putney Health System, Inc.

In Part I of this Article, I set forth the current landscape of the state action doctrine. In Part II, I explain the FTC\u27s and the Eleventh Circuit\u27s applications of the doctrine, highlighting the main points of contention that warrant clarification by the United States Supreme Court. I discuss the Court\u27s interpretive options on certiorari in Part There, I argue the Court should impose a higher standard than the Eleventh Circuit under the first prong of the test, which asks whether a state has clearly articulated a policy of displacing competition. I also explain a conflict between the FTC and Eleventh Circuit under the second prong of the test, which asks whether private parties acting pursuant to a clearly articulated policy are actively supervised by the state. I explain that both incorrectly interpret the implications of a sham transaction, and I resolve the resulting conflict through the lens of federalism principles and consideration of alternative checks on unnecessarily anticompetitive state action. Finally, in Part IV, I present alternative options that can be taken to ensure the state action doctrine does not lead to the joint destruction of federalism and competition

The Frightening At-Issue Exception to the Attorney-Client Privilege

The attorney-client relationship is understood by lawyers and the public to be infused with confidentiality, and the attorney-client privilege, which is essential to this sensitive and important relationship, is much revered. As vital as it may be, however, the attorney-client privilege is narrowly construed, laden with exceptions, and easily waived. On the theory that the attorney-client privilege is intended for use as a shield and not as a sword, it may be lost if a litigant asserts a claim or defense that requires inquiry into the litigant\u27s privileged communications with its lawyer to fairly rebut or refute. This principle is commonly described as the at-issue exception to the attorney-client privilege. The at-issue exception represents the most frightening type of privilege forfeiture because the law does not clearly warn clients of its risk and because lawyers may not realize its effect in time to avoid calamity. For this reason, lawyers must understand courts\u27 analysis and application of the at-issue exception. This article advances that process. In doing so, it carefully examines and critiques the three principal tests courts use to decide whether the at-issue exception applies, and discusses several types of cases and circumstances in which lawyers seem especially prone to missing the serious threat to the attorney-client privilege that the at-issue exception potentially poses