Let me stipulate that trying to evaluate a Supreme Court nominee based on a 30-year old law review article is a bad idea. That said, some of the issues that Obama nominee Merrick Garland wrote about in the mid-1980s are still relevant today. These issues have surfaced, surprisingly enough, in cases involving occupational licensing and teeth whitening.Before becoming a judge on the D.C. Circuit, Merrick Garland was an attorney at Arnold & Porter and a professor at Harvard Law School, where he taught antitrust law. He wrote several articles for the Harvard Law Review and Yale Law Journal on the scope of judicial review for administrative regulations and the state action doctrine. In the articles, Mr. Garland argued for a deferential, non-intrusive role for the judiciary. Courts should review administrative regulations to ensure fidelity to the intent of Congress and should not preempt the policy decisions of states through antitrust law or by … [Read more...] about If Republicans Allow A Hearing on Merrick Garland’s Nomination, They Should Ask Him About Teeth Whitening
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The Institute for Justice is challenging yet another licensing regulation, this time in a suit over restrictions on teeth whitening.The complaint (PDF), filed last month on behalf of two teeth-whitening entrepreneurs, challenges an Alabama law that allows only dentists to perform such services, according to the New York Times and a press release. Those who violate the law could face up to a year in a jail and a $5,000 fine.The suit contends the dentists-only restriction deprives the plaintiffs of their right to pursue a lawful occupation, in violation of due process and equal protection guarantees in the Alabama Constitution. One of the plaintiffs is Joyce Osborn Wilson, who invented a teeth-whitening system called BriteWhite that she sold to salons and spas.Alabama is among at least 14 states that define teeth whitening as the practice of dentistry. The American Dental Association has defended such restrictions. In a statement released to the Times, the ADA said a licensed dentist … [Read more...] about Teeth-whitening entrepreneurs challenge dentists-only restriction
The health care industry is familiar with the FTC’s enforcement presence for anticompetitive business practices in health care markets. But in a case involving the market for teeth-whitening services in North Carolina, it seems that state boards might now have to watch their steps too. Attorneys from Mintz Levin’s Health Care Antitrust Practice recently authored an alert entitled, Fourth Circuit Holds State Agencies Operated by Market Participants Are Private Actors for State Action Purposes , that discusses the case and why the Fourth Circuit agreed with the FTC’s determination that the North Carolina State Board of Dental Examiners illegally excluded nondentists from the state’s teeth-whitening market.The Fourth Circuit held that the dental board is subject to federal antitrust law because it was acting as a private party, not a governmental agency, when it issued cease-and-desist letters to teeth-whitening providers who were … [Read more...] about Fourth Circuit & Federal Trade Commission (FTC): State Dental Board Subject to Federal Antitrust Laws in Teeth-Whitening Case
A North Carolina dental regulatory board made up mostly of dentists doesn’t have state-action immunity in an antitrust action, the U.S. Supreme Court has ruled.The 6-3 decision (PDF) allows a Federal Trade Commission challenge to the board’s clampdown on teeth whitening by nondentists.Justice Anthony M. Kennedy wrote the majority opinion. The dental board didn’t have state-action immunity, Kennedy said, because North Carolina law is silent on whether its ban on the unauthorized practice of dentistry covers teeth whitening.When a state board has a controlling number of active market participants in the occupation it regulates, Kennedy said, state-action antitrust immunity cannot be invoked unless two requirements are met: 1) The challenged restraint of trade is clearly articulated and affirmatively expressed as state policy, and 2) The policy is actively supervised by the state.An amicus brief filed by the North Carolina State Bar had argued that a ruling for the FTC … [Read more...] about SCOTUS smiles on nondentist teeth whiteners, allows antitrust action against dentistry board
The U.S. Supreme Court has accepted a challenge to the antitrust power of the Federal Trade Commission against a state dentistry board that could have implications for state bar associations, according to an amicus brief.The issue arose after the North Carolina Board of Dental Examiners sent cease-and-desist orders to people performing teeth-whitening services without a dental license, according to the cert petition (PDF). The FTC found that the board, comprised primarily of dentists, acted in restraint of trade and ordered it to stop sending the cease-and-desist letters. The Richmond, Va.-based 4th U.S. Circuit Court of Appeals upheld the FTC’s authority.At issue in the case is whether the FTC can treat the North Carolina board as a private actor not entitled to the state-action exemption from antitrust law because a majority of the board’s members are market participants who are elected by other market participants.The amicus brief (PDF) filed by the North Carolina State … [Read more...] about SCOTUS accepts teeth-whitening case; could decision impair state bars’ ability to regulate lawyers?