Avvo General Counsel Josh King on the Supreme Court’s decision in North Carolina Board of Dental Examiners v. Federal Trade Commission:
The court made no bones about it, siding with the FTC: the regulatory bodies of self-regulated professions (like dentistry and the law) only get immunity from antitrust liability if they are “actively supervised” by the State.
It certainly wouldn’t be a bad thing if state licensing boards had their wings clipped. There’s little to recommend the granting of state monopoly power to a group of market participants and then letting them exclude competition with impunity. The practice is bad for consumers, protects entrenched interests, and acts as a drag on innovation. Pulling the state action doctrine back wouldn’t prevent the Bars from regulating, but it would be a step toward them – and all licensing boards – doing so in a more measured and appropriate way.