Hastings Law Journal


Gary Minda


The Noerr-Pennington doctrine, created by the Warren Court in the 1960s, has come to signify an important civil liberties exception to antitrust regulation, one that appears to stand on solid, albeit unexamined, constitutional grounds. This doctrine has permitted groups of competitors to petition government for anticompetitive purposes and anticompetitive effects. As a result of this doctrine corporate interests have been able to develop political strategies for accomplishing predatory market objectives otherwise rendered unlawful under the antitrust laws. This Article challenges the conventional wisdom supporting the Noerr- Pennington doctrine. First, the Article reveals how the doctrine developed on the basis of questionable policy assumptions concerning the role of interest groups in government. Borrowing from the recent literature of public choice, antitrust capture theory, and civic republicanism in American public law, the Article develops a descriptive and normative framework that provides justifications for modifying the Noerr-Pennington doctrine to allow greater antitrust regulation of petitioning by corporate interest groups. The Article critically reviews the most recent Supreme Court decisions in the area, including the Court's recent decision this Term in Superior Trial Lawyers Association v. FTC. Finally, the Article advances a general legal framework for resolving future Noerr-Pennington issues arising in the legislative, administrative, and judicial spheres of government.

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