The United States Department of Justice Antitrust Division Public Roundtable Series on Competition and Deregulation, First Roundtable on State Action, Statutory Exemptions and Implied Immunities, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University


This comment is submitted in connection with the first session of the Antitrust Division’s Public Roundtable Series on Competition and Deregulation, focusing on statutory exemptions, implied immunities and the State Action doctrine, scheduled for March 14, 2018. The Global Antitrust Institute’s (GAI’s) Competition Advocacy Program commends the Division for inviting discussion on these important issues. The GAI submission reviews the key economic considerations that should guide resolution of the main issues that arise when claims of implied immunity and/or the State Action defense are asserted by those accused of antitrust violations. To improve the public accountability of state government for anticompetitive regulatory policies, the GAI recommends that State Action immunity be restricted or withdrawn when state regulations impose most of their anticompetitive effects on non-residents.