Wayne Law Review
Congress enacted the Local Government Antitrust Act of 1984 in response to outcomes in many well-publicized cases and from widespread criticism of the state action doctrine as applied by the courts. The state action exemption as used by the courts today is riddled with analytical and practical problems. The Local Government Antitrust Act of 1984 shields municipal governments from monetary damage awards for violations of antitrust laws, but the act did not go far enough.
A few state legislatures have either considered or enacted statutes protecting municipalities from state or federal antitrust liability. However, preemption analysis is problematic because it only avoids second-guessing local governments in their economic and social decision making.
Proposed solutions to problems of analysis and application of the Parker doctrine of 1943 and its progeny range from complete immunity for municipalities to mere modifications of the balancing test. Anything short of total immunity retains many of the flaws of the traditional state action rule. The Local Government Antitrust Act, as enacted by Congress, is a step in the right direction. However, the protection offered by the Act does not go far enough. Congress should extend complete antitrust immunity to local governments.
Victoria Mather, Antitrust Implications of Municipal Land Use Planning, 33 Wayne L. Rev. 965 (1986-7).