The Sherman Act as a Home Rule Charter: Community Communications Co. v. City of Boulder

Abstract

The Supreme Court's decision in Community Communications Co. v. City of Boulder, denying antitrust immunity for local governments exercising home-rule authority, significantly extends the reach of the Sherman Act. Considering especially the vague contours of antitrust laws, the new exposure of local governments to liabilities for policy-judgment "errors" is potentially broad. The immediate effect of enforcing antitrust surveillance of local government decisions will be to displace local policy criteria with national antitrust criteria. In the longer term, however, the effect will be to shift power and discretion to the states, as local governments seek to avoid the threat of liability by obtaining specific authority for their actions from state legislatures. The consequential displacement of local prerogative is not required by antitrust policy, and it is at odds with multitiered and diversified federalism.