North Carolina Board of Dental Examiners v. Federal Trade Commission - Post-Decision SCOTUScast

On February 25, 2015 the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. Federal Trade Commission.  The question in this case is whether the state-action exemption from federal antitrust laws applies to a state dental regulatory board when the majority of board members are dental professionals who are elected by other market participants--and thus potential competitors of anyone seeking entry into the dental industry.  The Federal Trade Commission denied immunity to the Board and the Fourth Circuit affirmed that ruling on appeal

By a vote of 6-3, the Supreme Court affirmed the judgment of the Fourth Circuit.  Because a controlling number of the Board’s decisionmakers are active market participants in the occupation the Board regulates, the Court explained, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State--and that supervision is lacking here.

Justice Kennedy delivered the opinion of the Court, which was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, which Justices Scalia and Thomas joined.

To discuss the case, we have Prof. Alexander “Sasha” Volokh, who is an Associate Professor of Law at the Emory University School of Law.  Professor Volokh received his JD and PhD in economics from Harvard University.

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