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State action immunity could get boost from SCOTUS nominee

D.C. circuit judge Merrick Garland, if he’s eventually sworn in to the U.S. Supreme Court, could be a key ‘swing’ vote on some of the antitrust issues that have besieged the licensing community of late, says a March 16 article published by The National Law Review.

Garland, recently nominated to the high court by President Obama, has a history of supporting a limited antitrust role for the federal government. He argued in the past for a “non-intrusive role” by the judiciary regarding matters that pertain to the state action doctrine. “The judiciary should not interfere under the aegis of the antitrust laws with a state’s political decision, however misguided it may be, to substitute regulation for the operation of the market,” Garland wrote in a 1987 Yale law journal article.

In the landmark ruling by the Supreme Court in February of 2015, the court held that the Federal Trade Commission properly halted a state dental board from issuing cease and desist orders to non-dentist teeth whitening establishments.


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