Interest Groups, Antitrust, and State Regulation : Parker v. Brown in the Economic Theory of Legislation

This article, published in 1987, responds to John Shepard Wiley, A Capture Theory of Antitrust Federalism, 99 Harv. L. Rev. 713 (1986). In an earlier article, I argued that the "clear articulation" requirement is the best criterion for "state action" antitrust immunity because it reinforces representative (as opposed to administrative) political processes. Wiley argued, however, that even clearly articulated state economic choices are illegitimate, and should therefore not be immune, if they are the product of capture by interest groups. I argue in response that the Madisonian gauntlet of state legislative processes provides a more appropriate basis for deference to state economic choices than the theory of legislative capture