When Are Universities And Executive Agencies "State Actors" For Antitrust Immunity?

More than fifty years ago, the Supreme Court formalized the "state-action antitrust immunity" doctrine ─ a judge-made rule that certain state governmental conduct is immune from challenge under the federal antitrust laws. Since then, the courts have had a love-hate relationship with "Parker" immunity. The difficulties of that relationship are particularly important to public colleges and universities, which face antitrust claims in a variety of contexts, from trademark licensing to bar exam preparation to "no poaching" arrangements.

A little background illustrates the problem.

On the one hand, "Parker" immunity is grounded in principles of federalism and the recognition that "nothing in the language of the Sherman Act . . . suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature."^[1] Thus, otherwise anticompetitive actions are deemed "immune" from challenge under the antitrust laws when those actions