SMU Law Review


The Supreme Court has created various tests in cases involving antitrust preemption of state regulations—such as Midcal’s state immunity two-pronged analysis and Fisher’s hybrid versus unilateral restraint test—without clarifying how the various tests fit together. This has led to circuit splits not only in regard to how courts approach antitrust preemption cases but also in regard to the preemption findings of nearly identical laws in different circuits. In a departure from the Ninth and Fourth Circuits, the Second Circuit recently upheld the validity of Connecticut’s post-and-hold alcohol pricing regulation. State post-and-hold regulations effectuate illegal price fixing between competitors in violation of the Sherman Act, and therefore should be preempted by federal antitrust law. Under all the tests in Supreme Court antitrust preemption jurisprudence, post-and-hold regulations fail to escape preemption. Though post-and-hold regulations have been shown to temper consumption, there are better approaches to protect consumer welfare without also hindering it through anticompetitive means.

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