I. INTRODUCTION

II. STATE SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT

A.Parameters of state sovereign immunity

B. Recent Eleventh Amendment developments

  1. State courts and state sovereign immunity
  2. The scope of congressional abrogation power
  3. Market participation and state sovereign immunity
  4. But what about the spending power?

III. THE DORMANT COMMERCE CLAUSE

A. State action that violates the dormant Commerce Clause

  1. Discrimination against interstate commerce
  2. Excessive burden on interstate commerce

B. The market participant doctrine

IV. THE STATE ACTION IMMUNITY DOCTRINE

A. State action immunity and the Constitution

B. The standards

  1. Clearly articulated state policy to displace competition with regulation
  2. Active supervision

C. Local Government Antitrust Act of 1984

V. IS THERE A MARKET PARTICIPATION EXCEPTION TO THE STATE ACTION IMMUNITY DOCTRINE?

A. Express indications from the Supreme Court

  1. Indications in favor of the exception
  2. Indications against the exception

B. Other federal authority

C. The implications of College Savings Bank

  1. The traditional approach to sovereign immunity: the commercial activity exception in foreign relations law and the act of state doctrine 19
  2. “Evenhandedness” and antitrust

VI. MARKET PARTICIPATION AND THE HEALTH CARE INDUSTRY

A. The case of the county in need of a market participation exception

B. Clear articulation: regulation versus participation

C. Public hospitals and state action immunity: some possible detrimental effects

VII. CONCLUSION

Resources

Reprinted with permission from Mathew Bender’s Antitrust Report October 1999