The Dormant Commerce Clause, Anticompetitive State Regulation, Competition and Consumers

Posted by D. Daniel Sokol

Kexin Li (American Antitrust Institute) discusses The Dormant Commerce Clause, Anticompetitive State Regulation, Competition and Consumers

ABSTRACT: The purpose of this working paper is to examine anticompetitive state regulations under the dormant Commerce Clause in light of competition policy and consumer welfare. The paper is organized into three sections: (1) introduction of the dormant Commerce Clause and the problem of anticompetitive state regulations; (2) introduction of the state action doctrine as a hurdle for antitrust law to reach such regulations; and (3) argument that the dormant Commerce Clause can be used to regulate such regulations using two recent Ninth Circuit decisions as an example.