Scrutinizing Anticompetitive State Regulations Through Constitutional and Antitrust Lenses

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism and diminished state action immunity from antitrust law in cases brought by the Federal Trade Commission.

Each tool has some advantages and disadvantages as a potential foil to anticompetitive regulation.