References
| ↑1 | Justice Holmes’ stated ground was that baseball was not “interstate commerce” of the kind that Congress was empowered to regulate by the U.S. Constitution’s Commerce Clause, so that Congress’ Sherman Act could not reach any aspect of “the business of baseball.” See Federal Baseball Club v. National League, 259 U.S. 200, 208-09 (1922). That approach to the Commerce Clause has long since been abrogated, but the Supreme Court has allowed the baseball exemption to remain in place on the doubtful ground that Congress has chosen not to disturb Justice Holmes’ ruling, and that Congress rather than a court should repeal his expansive exemption of the business of baseball from federal antitrust law, lest a court ruling upset the settled expectations of ballclub owners. See Toolson v. New York Yankees, Inc., 346 U.S. 356, 356–57 (1953) (holding that the baseball industry had relied for longer than thirty years on the baseball exemption established in Federal Baseball, and that in consequence Congress alone could properly restore prospective antitrust protections for any activity that is part of the “business of baseball,” since to act otherwise would undermine the reasonable expectations developed by those in the baseball industry who had acted in reliance on its exemption from antitrust law); Flood v. Kuhn, 407 U.S. 258, 283 (1972) (stating same grounds as Toolson in a longer opinion). Congress, for its part, enacted a law in 1998 that afforded a very limited repeal of the baseball exemption: it permits major-league ballplayers to entertain employment offers from rival clubs and thus ended the owners’ use of the “reserve clause,” which until then was always included in ballplayers’ contracts and authorized each team to nix any rival employment offer made to any player on the team. Otherwise, the baseball exemption remains in effect, placing all other aspects of the business of baseball beyond the reach of federal antitrust law. At the same time, the federal courts have not permitted state antitrust laws to regulate baseball, ruling that to do so would likely subject baseball to inconsistent rulings. See Major League Baseball v. Crist, 331 F.3d 1177, 1185 (11th Cir. 2003). But any such ruling cannot be reconciled with Justice Holmes’ grant of a federal exemption: if baseball is not interstate commerce, then it must be intrastate commerce that each state can regulate. On this matter I believe that the Supreme Court has ruled incorrectly: the onus should be on Congress to enact a statutory exemption for baseball if it wishes to place this business beyond the reach of federal antitrust law. In the meantime, the business of baseball enjoys a singular, indefensible exemption from antitrust law that has harmed minor-league players, fans, cities, and others. I address the baseball exemption to antitrust below. |
|---|---|
| ↑2 | 15 U.S.C. §§ 1011-1012 |
| ↑3 | See 15 U.S.C.A. § 1012 |
| ↑4 | State-action immunity is a doctrine established and refined by a series of Supreme Court decisions to address the unresolved tension between Congress’ supreme authority to enact laws in furtherance of its enumerated powers, such as the Sherman Act and other federal antitrust statutes, and each state’s sovereign authority to regulate its own affairs and internal commerce. |
| ↑5 | 28 U.S.C. §§ 1604-1607 |
| ↑6 | See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 555–56 (2014) (“Under the Noerr–Pennington doctrine—established by Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965)—defendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decisionmaking by the government.”). |
| ↑7 | See E. R. R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961) (“[N]o violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws.”); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670 (1965) (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose…. Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.”). |
| ↑8 | Excerpt from the First Amendment of the U.S. Constitution. |
| ↑9 | Excerpt from the Fourteenth Amendment of the U.S. Constitution. |
| ↑10 | See Williams-Yulee v. Fla. Bar, 575 U.S. 433, 442–44 (2015) (discussing standard of review for state or federal law that restricts a right guaranteed by the First Amendment, and holding that “a State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.”). |
| ↑11 | See U.S. Futures Exch., L.L.C. v. Bd. of Trade of the City of Chicago, Inc., 953 F.3d 955, 960 (7th Cir. 2020) (“The [Noerr-Pennington] doctrine flows from First Amendment origins: antitrust laws do not supersede the people’s right to petition their government in favor of a desired monopoly.”); Noerr, 365 U.S. at 136–38 (“[T]he Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly…. [S]uch a construction of the Sherman Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Indeed, such an imputation would be particularly unjustified….”). |
| ↑12 | See id., 365 U.S. at 136–38 (“[S]uch a holding would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade. In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act…. [O]f at least equal significance, such a construction of the Sherman Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Indeed, such an imputation would be particularly unjustified in this case in view of all the countervailing considerations enumerated above.”). |
| ↑13 | See U.S. Futures Exch., 953 F.3d 955, 960. |
| ↑14 | Noerr, 365 U.S. at 136 (petitioning activity includes any effort to influence or obtain relief from the legislature or executive branch of government); id. at 139–40 (petitioning activity includes any publicity campaign undertaken to influence decisionmaking by any governmental authority); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (petitioning activity includes claims made to any court or administrative agency, since the right of petition includes “the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”). |
| ↑15 | See U.S. Futures Exch., 953 F.3d at 960. |
| ↑16 | 15 U.S.C. § 26. |
| ↑17 | See U.S. Futures Exch., 953 F.3d at 960 (“Noerr-Pennington immunity is not absolute…. Exceptions exist for petitioners who present fraudulent misrepresentations or bring sham lawsuits.”). |
| ↑18 | See U.S. Futures Exch., 953 F.3d at 960 (“Fraudulent misrepresentations made in an adjudicative proceeding before an administrative agency are not protected from antitrust liability. Those made in a legislative, political setting, however, enjoy immunity.”). |
| ↑19 | See Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174 (1965) (“The enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present. In such event the treble damage provisions of § 4 of the Clayton Act would be available to an injured party.”); see also Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1070 (Fed. Cir. 1998) (fraud on the patent office can rise to the level of predicate antitrust conduct when the fraud entails a “clear intent to deceive,” such as a positive misrepresentation of material fact or the knowing concealment of material information, but not mere “inequitable conduct”). |
| ↑20 | See Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–61 (1993) (“PRE”) (“We now outline a two-part definition of ‘sham’ litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor, through the use of the governmental process—as opposed to the outcome of that process—as an anticompetitive weapon.”). |
| ↑21 | See PRE, 508 U.S. at 60–61 (an “objectively baseless” lawsuit is one “that no reasonable litigant could realistically expect success on the merits.”). |
| ↑22 | See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511–12 (1972) (petitioners’ purported petitioning conduct is a mere sham and therefore not entitled to Noerr-Pennington immunity, when petitioners “instituted [numerous] proceedings and actions [against a rival] with or without probable cause, and regardless of the merits of the cases” in order to overwhelm the rival and thereby deprive it of its own access to the courts or administrative tribunals); see also Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 180 (3d Cir. 2015) (“We agree with the approach to [sham litigation]… adopted by the Second, Fourth, and Ninth Circuits. As stated in Noerr itself, the ultimate purpose of this inquiry is to determine whether the petitioning activity is a ‘mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.’ The best way to make that determination depends on whether there is a single filing or a series of filings. Where there is only one alleged sham petition…. Professional Real Estate requires a showing of objective baselessness before looking into subjective motivations in order to prevent any undue chilling of First Amendment activity. In contrast, a more flexible standard is appropriate when dealing with a pattern of petitioning. Not only do pattern cases often involve more complex fact sets and a greater risk of antitrust harm, but the reviewing court sits in a much better position to assess whether a defendant has misused the governmental process to curtail competition. As a result, even if a small number of the petitions turn out to have some objective merit, that should not automatically immunize defendants from liability.”); but cf. U.S. Futures Exch., 953 F.3d at 964–65 (“We do not agree California Motor provides a separate rubric to use whenever a “pattern” of sham filings is alleged. The First Circuit rejected this same reading of California Motor recently in Puerto Rico Telephone Co. v. San Juan Cable LLC, 874 F.3d 767 (2017), splitting from the four circuit opinions cited [above]…. We stand with the First Circuit…. We, too, find little logic in concluding a petitioner loses the right to file an objectively reasonable petition merely because it chooses to exercise that right more than once in the course of pursuing its desired outcome…. As the [Supreme] Court made clear in PRE [cited above], the sham exception’s objective component is indispensable and California Motor does not suggest otherwise.”). |
| ↑23 | See U.S. Futures Exch., 953 F.3d at 960; Hanover 3201 Realty, 806 F.3d at 180. |
| ↑24 | See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“Throughout our history the several States have exercised their police powers to protect the health and safety of their citizens. Because these are primarily, and historically, matters of local concern, the States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”). |
| ↑25 | See Parker v. Brown, 317 U.S. 341, 359–60 (1943) (“The governments of the states are sovereign within their territory save only as they are subject to the prohibitions of the Constitution or as their action in some measure conflicts with powers delegated to the National Government, or with Congressional legislation enacted in the exercise of those powers. This Court has repeatedly held that the grant of power to Congress by the Commerce Clause did not wholly withdraw from the states the authority to regulate the commerce with respect to matters of local concern, on which Congress has not spoken. A fortiori there are many subjects and transactions of local concern … which are within the regulatory and taxing power of the states, so long as state action serves local ends and does not discriminate against [interstate] commerce, even though the exercise of those powers may materially affect it.”). |
| ↑26 | See Gibbons v. Ogden, 22 U.S. 1, 210–11 (1824) (Where “a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law or treaty properly passed by Congress,” the state law “must yield” to the federal law, since the Supremacy Clause of the U.S. Constitution requires this outcome, and therefore “[i]n every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.”). |
| ↑27 | See U.S. Constitution, Article I, Section 8, which in pertinent part empowers Congress “to regulate Commerce with foreign Nations, and among the several States….”). |
| ↑28 | See Selevan v. New York Thruway Auth., 584 F.3d 82, 90 (2d Cir. 2009) (“In implementing the Commerce Clause, the Supreme Court has adhered strictly to the principle that the right to engage in interstate commerce is not the gift of a state, and that a state cannot regulate or restrain it. It flows from this principle that the negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby impedes free private trade in the national marketplace.”). |
| ↑29 | See Selevan, 584 F.3d at 90 (“A state statute or regulation may violate the dormant Commerce Clause only if it (1) clearly discriminates against interstate commerce in favor of intrastate commerce, (2) imposes a burden on interstate commerce incommensurate with the local benefits secured, or (3) has the practical effect of extraterritorial control of commerce occurring entirely outside the boundaries of the state in question.”). |
| ↑30 | See Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 67–68 (1st Cir. 1997) (to determine whether a federal law preempts state laws on the same subject-matter, the “crucial inquiry” is whether “Congress intend[ed] to exercise its constitutionally delegated authority to set aside the laws of a State?” – which is answered by considering “the explicit statutory language and the structure and purpose of the statute” and, where a state police power is concerned, by assuming that “federal law does not supersede a state’s historic police powers unless that is the clear and manifest purpose of Congress.”). |
| ↑31 | See Parker, 317 U.S. at 350–51 (“We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress. The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state…. There is no suggestion of a purpose to restrain state action in the Act’s legislative history.”). |
| ↑32 | See id. |
| ↑33 | See Cmty. Commc’ns Co. v. City of Boulder, Colo., 455 U.S. 40, 51 (1982) (“[M]unicipal conduct” is immune from federal antitrust law only when undertaken “pursuant to state policy to displace competition with regulation or monopoly public service,” and this policy must be “clearly articulated and affirmatively expressed.”). |
| ↑34 | See Local Government Antitrust Act of 1984, 15 U.S.C. §§ 34-36 |
| ↑35 | See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991). |
| ↑36 | See id. (“[The Local Government Antitrust Act of 1984] precludes the recovery of damages, costs, or attorneys fees, on the basis of 15 U.S.C. §§ 15, 15a, or 15c, from local government entities. However, the provision that mandates that costs and attorneys fees be awarded to plaintiffs who substantially prevail in actions for injunctive relief is 15 U.S.C. § 26.”). |
| ↑37 | See California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980) (establishing doctrine); F.T.C. v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 225 (2013) (“[G]iven the fundamental national values of free enterprise and economic competition that are embodied in the federal antitrust laws, state-action immunity is disfavored…. Consistent with this preference, we recognize state-action immunity only when it is clear that the challenged anticompetitive conduct is undertaken pursuant to a regulatory scheme that is the State’s own. Accordingly, closer analysis is required when the activity at issue is not directly that of the State itself, but rather is carried out by others pursuant to state authorization. When determining whether the anticompetitive acts of private parties are entitled to immunity, we employ a two-part test, requiring first that the challenged restraint be one clearly articulated and affirmatively expressed as state policy, and second that the policy be actively supervised by the State.”). |
| ↑38 | See McCarran-Ferguson Act of 1945, which is codified at 15 U.S.C. §§ 1011-1012. |
| ↑39 | See Webb-Pomerene Act of 1918, which is codified at 15 U.S.C. §§ 61-65; see also Export Trading Company Act of 1982, which is codified at 15 U.S.C. § 6a. |
| ↑40 | See Foreign Trade Antitrust Improvements Act of 1982, which is codified at 15 U.S.C. § 6a. |
| ↑41 | 46 U.S.C. §§ 1701-1720 |
| ↑42 | See Norris-LaGuardia Act of 1932, which is codified at 29 U.S.C. §§ 101-115, as well as Section 6 of the Clayton Act of 1914, which is codified at 15 U.S.C. § 17. |
| ↑43 | See Section 6 of the Clayton Act and the Capper-Volstead Act of 1922, which is codified at 7 U.S.C. § 291. |
| ↑44 | See Health Care Quality Improvement Act of 1986, which is codified at 42 U.S.C. §§ 11111 et seq. |
| ↑45 | See 50 U.S.C. § 2062 |
| ↑46 | See Newspaper Preservation Act in 1970, which is codified at 15 U.S.C. §§ 1801-1804. |
| ↑47 | See 12 U.S.C.§ 1828c. |
| ↑48 | See Soft Drink Interbrand Competition Act, which is codified at 15 U.S.C. §§ 3501–3503. |
| ↑49 | See Charitable Donation Antitrust Immunity Act of 1997, which is codified at 15 U.S.C. § 37(a). |
| ↑50 | See Pension Funding Equity Act of 2004, which is codified at 15 U.S.C. § 37b(b)(2). |
| ↑51 | See Federal Baseball Club v. National League, 259 U.S. 200, 208-09 (1922) (finding that the “business of baseball” did not constitute interstate commerce that Congress had authority to regulate); see alsoToolson v. New York Yankees, Inc., 346 U.S. 356, 356–57 (1953) (holding that the baseball industry had relied for longer than thirty years on the baseball exemption established in Federal Baseball, and that in consequence Congress alone could properly restore prospective antitrust protections for any activity that is part of the “business of baseball,” since to act otherwise would undermine the reasonable expectations developed by those in the baseball industry who had acted in reliance on its exemption from antitrust law); Flood v. Kuhn, 407 U.S. 258, 283 (1972) (stating same grounds as Toolson in a longer opinion). |
| ↑52 | See Federal Baseball, 259 U.S. 200, 208-09 (1922). |
| ↑53 | See Wickard v. Filburn, 317 U.S. 111, 124 (1942) (“The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce….”). |
| ↑54 | See Toolson, 346 U.S. 356–57; Flood, 407 U.S. at 283. |
| ↑55 | See the Curt Flood Act of 1998, which is codified at 15 U.S.C. § 26b. |
| ↑56 | See, e.g., City of San Jose v. Off. of the Com’r of Baseball, 776 F.3d 686, 690–91 (9th Cir. 2015). |
| ↑57 | See Phillip E. Areeda (late) & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶251. (4th and 5th Editions 2015-2021) (“”[B]eginning with Justice Holmes’s decision in Federal Baseball Club, the basis of the Supreme Court’s refusal to apply the Sherman Act was that baseball was not ‘commerce.’ Since the ‘commerce’ language in the Sherman Act tracks that in the Commerce Clause, that holding was tantamount to one that the Commerce Clause did not permit Congress to regulate organized baseball. But the function of the Commerce Clause is to allocate regulatory power as between the federal government and the states. As a result, Federal Baseball Club is best read not as an antitrust policy decision that baseball should not be regulated but as a conclusion that in the assignment of regulatory powers, the power to regulate baseball fell to the states rather than to the federal government.”). |
| ↑58 | See Major League Baseball v. Crist, 331 F.3d 1177, 1185 (11th Cir. 2003) (finding that baseball is interstate in character and therefore requires uniform national regulation, and that the chosen regulation is to deny baseball antitrust protections, except for contract negotiations between major-league players at major-league teams.). |
| ↑59 | see Grp. Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210–11 (1979) (“The statutory language [of the McCarran-Ferguson Act] does not exempt the business of insurance companies from the scope of the antitrust laws. The exemption is for the ‘business of insurance,’ not the ‘business of insurers’”); Sec. & Exch. Comm’n v. Nat’l Sec., Inc., 393 U.S. 453, 459–60 (1969) (“The statute did not purport to make the States supreme in regulating all the activities of insurance companies; its language refers not to the persons or companies who are subject to state regulation, but to laws ‘regulating the business of insurance.’ Insurance companies may do many things which are subject to paramount federal regulation; only when they are engaged in the ‘business of insurance’ does the statute apply.”). Whether an insurer’s challenged practice constitutes an insurance activity sometimes gives rise to difficult judgment calls, but over time the courts have settled on a reasonably clear standard, finding that the business of insurance means the spreading of risk, or, more precisely, the insurer’s assumption of a specified risks otherwise borne by its insureds in exchange for fees.(((See Royal Drug, 440 U.S. at 211 (“The primary elements of an insurance contract are the spreading and underwriting of a policyholder’s risk. It is characteristic of insurance that a number of risks are accepted, some of which involve losses, and that such losses are spread over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possible liability upon it.”) (quoting G. Couch, Cyclopedia of Insurance Law § 1:3 (2d ed. 1959)). |
| ↑60 | See id. |
| ↑61 | See Sec. & Exch. Comm’n v. Nat’l Sec., Inc., 393 U.S. 453, 460, 89 S. Ct. 564, 568–69, 21 L. Ed. 2d 668 (1969). |
| ↑62 | see Sec. & Exch. Comm’n v. Variable Annuity Life Ins. Co. of Am., 359 U.S. 65, 73 (1959). |
| ↑63 | see Royal Drug, 440 U.S. 205, 214 (1979). |
| ↑64 | see, e.g., Pireno v. New York State Chiropractic Association, 650 F.2d 387 (2d Cir. 1981); St. Bernard Hospital v. Hospital Service Assn. of New Orleans, Inc., 618 F.2d 1140, 1145 (5th Cir. 1980); Bartholomew v. Virginia Chiropractors Association, 612 F.2d 812, 819 (4th Cir. 1979); Hoffman v. Delta Dental Plan of Minnesota, 517 F. Supp. 564, 569 (D. Minn. 1981). |
| ↑65 | See Royal Drug, 440 U.S. at 211. |
| ↑66 | See Silver v. New York Stock Exch., 373 U.S. 341, 357 (1963) (“The Securities Exchange Act contains no express exemption from the antitrust laws…. This means that any repealer of the antitrust laws must be discerned as a matter of implication, and it is a cardinal principle of construction that repeals by implication are not favored. Repeal is to be regarded as implied only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary.”); Gordon v. New York Stock Exch., Inc., 422 U.S. 659, 682 (1975) (“This Court has considered the issue of implied repeal of the antitrust laws in the context of a variety of regulatory schemes and procedures. Certain axioms of construction are now clearly established. Repeal of the antitrust laws by implication is not favored and not casually to be allowed. Only where there is a plain repugnancy between the antitrust and regulatory provisions will repeal be implied.”); Phonetele, Inc. v. Am. Tel. & Tel. Co., 664 F.2d 716, 726 (9th Cir. 1981), modified, (9th Cir. Mar. 15, 1982) (“[A]ntitrust immunities are to be strictly construed and not lightly inferred. An implied immunity may be found only where there is a convincing showing of clear repugnancy between the antitrust laws and the regulatory system.”). |
| ↑67 | See W.S. Kirkpatrick & Co. v. Env’t Tectonics Corp., Int’l, 493 U.S. 400, 404 (1990) (In earlier times, the doctrine of acts of state “rest[ed] upon the highest considerations of international comity and expediency,” but in the modern era it is honored because of “the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder the [other Branches’] conduct of foreign affairs.”). |
| ↑68 | See id. 493 U.S. at 405 (“[T]he act of state doctrine [is] applicable [when] the relief sought or the defense interposed would have required a court in the United States to declare invalid the official act of a foreign sovereign performed within its own territory.”). |
| ↑69 | See Int’l Ass’n of Machinists & Aerospace Workers, (IAM) v. Org. of Petroleum Exporting Countries (OPEC), 649 F.2d 1354, 1361–62 (9th Cir. 1981), disapproved of by Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) (“The act of state doctrine is applicable in this case. The courts should not enter at the will of litigants into a delicate area of foreign policy which the executive and legislative branches have chosen to approach with restraint. The issue of whether the [Foreign Sovereign Immunities Act] allows jurisdiction in this case need not be decided, since a judicial remedy is inappropriate regardless of whether jurisdiction exists. Similarly, we need not reach the issues regarding the indirect-purchaser rule, the extra-territorial application of the Sherman Act, the definition of “person” under the Sherman Act, and the propriety of injunctive relief.”). |
| ↑70 | See Samantar v. Yousuf, 560 U.S. 305, 311 (2010) (“The doctrine of foreign sovereign immunity developed as a matter of common law…. [I]n Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812), Chief Justice Marshall concluded that the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns. The Court’s specific holding in Schooner Exchange was that a federal court lacked jurisdiction over a national armed vessel of the emperor of France, but the opinion was interpreted as extending virtually absolute immunity to foreign sovereigns as a matter of grace and comity.”). |
| ↑71 | See Tachiona v. Mugabe, 169 F. Supp. 2d 259, 268–73 (S.D.N.Y. 2001), aff’d in part, rev’d in part and remanded sub nom. Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004) (provided extended discussion of these matters); see also 26 Dep’t State Bull. 984 (1952) (establishing the State Department’s adoption of the restrictive version of sovereign immunity). |
| ↑72 | See id. |
| ↑73 | See id. |
| ↑74 | id. |
| ↑75 | See 28 U.S.C. §§ 1604-1607. |
| ↑76 | See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 163–66 (2004). |