The Times story:
The Supreme Court on Wednesday ruled that a state dental board controlled by dentists may be sued under antitrust laws for driving teeth-whitening services out of business.
The decision, by a 6-to-3 vote, set standards that will most likely also apply to state licensing boards, including those for doctors, lawyers and other professionals. States often rely on such boards to decide which potential competitors may ply their trades.
What’s most significant is the analysis of the so-called “active supervision” requirement to fall within the “state action” immunity from anti-trust liability. As SCOTUS explains:
The requirement of state supervision announced in today’s opinion applies to agencies “controlled by active market participants.” Actions taken by boards with no involvement from market participants may not have to satisfy that requirement. The opinion also identifies some factors concerning adequate state supervision. For example, the state supervisor must actually review the substance of the agency’s actions and have the power to overrule or modify the actions.
So, states can delegate to bar associations, but must actively supervise. What is interesting to me is the idea that when a court, as in Washington, tells the bar to set up a regulatory system for nonlawyers, the court could hardly be said not to be actively supervising. To the extent that courts may be more willing to move forward on these issues than the organized bar, this newly underlined incentive could be very good news indeed.