Evening Must-Read: Ann Marie Marciarille: Teeth Whitening at the Supreme Court: Occupational Licensing and Antitrust Law

…is out…. It… in an unexpected way… delineat[es] antitrust’s limits on the states’ powers to regulate, de-regulate, and out-source regulation to a “non-sovereign actor.”… [The case] has ended up as a poster child for the clear articulation and active supervision standards required to determine whether an anticompetitive policy is indeed the policy of a given state, and entitled to immunity…. North Carolina’s Dental Board functioned more as a trade association with super powers granted to it by the state–apparently with an open-ended portfolio of responsibilities relating to dentistry in the state…. The dissent argues the delegation was valid and the Sherman Act does not sit to second guess the wisdom or even fairness of the delegation. Whatever you think of the dissent, Justice Alito is spot on when he notes that the majority opinion is potentially quite disruptive for state medical licensing boards… long been under full sway of the regulated health professions…. We have almost no tradition of genuine state regulation of doctors, dentists, and optometrists other than the North Carolina Dental Board model…. If we aim to take it over it will not be a taking it back, but a taking it on–an invention out of whole cloth.