Antitrust and IPOs in the Supreme Court

This short comment suggests a connection, so far unrecognized, between two antitrust cases currently awaiting decision by the Supreme Court. In one case, the Court is likely, though not certain, to overturn the long-standing rule that resale price maintenance is illegal per se. If that should occur, another case on the Court’s docket, involving the scope of the implied antitrust immunity enjoyed by underwriters of corporate securities offerings, would (or should) look very different. This comment suggests that, if the law of vertical restraints is finally rationalized so that an issuer of a security may lawfully restrict price and other competition among its distributors, the traditional basis for inferring a congressional intention to exempt securities offerings from the Sherman Act (a “clear repugnancy” between two statutory regimes) would at least arguably disappear. Although the justices are unlikely to see the point in the pending case on underwriter immunity, there might be room for future antitrust challenges to horizontal restraints conceived and implemented by underwriters in IPOs

Practice Guidelines as Legal Standards Governing Physician Liability

The utility of medical practice guidelines in the law of medical malpractice was studied. Contrary to the views of most physicians and policy makers, practice guidelines should be allowed to evolve in a pluralistic fashion

Contesting Anticompetitive Actions Taken in the Name of the State: State Action Immunity and Health Care Markets

The so-called state action doctrine is a judicially created formula for resolving conflicts between federal antitrust policy and state policies that seem to authorize conduct that antitrust law would prohibit. Against the background of recent commentaries by the federal antitrust agencies, this article reviews the doctrine and discusses it\u27s application in the health care sector, focusing on the ability of states to immunize anticompetitive actions by state licensing and regulatory boards, hospital medical staffs, and public hospitals, as well as anticompetitive mergers and agreements. Although states are free, as sovereign governments, to restrict competition, the state action doctrine requires that the state itself make the decision to do so. Partly on the basis of problems in the political environment, the article criticizes courts for using a mere forseeability test to decide whether a state legislature sufficiently authorized competitors to act in contravention of clear federal policy: Few things are more foreseeable than that a trade or profession empowered to regulate itself will produce anticompetitive regulations

Foreword: The Place of Private Accrediting among the Instruments of Government

The Federal Government relies on private accreditation in lieu of direct public regulation, especially in the fields of health care and education. It is possible that the government hopes to foster pluralism in the regulatory state