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Published online by Cambridge University Press: 06 May 2021
This Article analyzes the possible antitrust liability of medical credentialing programs by dividing their potentially anticompetitive acts into three categories: (1) communicative behavior—for example, credentialing agencies’ promulgation of standards—designed primarily to influence government decision making; (2) communicative behavior designed to influence private decision makers, such as consumers, hospitals, and training programs; and (3) noncommunicative behavior—for example, an agreement by the credentialing agency and others to boycott a group of professionals—that might be used to exclude competitors from various fields of medical care. The author argues that the first amendment of the U.S. Constitution, together with the related Noerr-Pennington doctrine, should exempt from antitrust law any credentialing standard that has been adopted for a good-faith purpose and is at least arguably reasonable. On the other hand, the author also argues that antitrust law should condemn any “sham” standard that in fact is designed to eliminate or to punish competitors, and any other noncommunicative behavior by credentialing agencies for the same purpose.
Research on which this Article was based was done for Lewin & Associates, Inc., in connection with that firm's study of health manpower for the Federal Trade Commission. The opinions expressed in this Article have not been adopted by the Federal Trade Commission and do not necessarily reflect its views.
1 Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
2 See Statement by Daniel C. Schwartz, Acting Director, Bureau of Competition, Federal Trade Commission, before the Advisory Committee on Accreditation and Institutional Eligibility, U.S. Office of Education (Mar. 24, 1977) (urging the Advisory Committee to recommend that the Office of Education withdraw recognition from the Liaison Committee on Medical Education.(LCME) as a federally recognized accrediting body for medical schools because of an inherent conflict between public and private interests in the LCME's structure and role).
3 See National Health Council, Inc., Antitrust and Health Services: A Second Look 10-11 (1978). See also Randall, The FTC and the Plastic Surgeons, 299 New England J. Med. 1464 (1978)CrossRefGoogle Scholar.
4 Paralegal Inst., Inc. v. American Bar Ass'n, 475 F. Supp. 1123 (E.D.N.Y. 1979); Veizaga v. National Board for Respiratory Therapy, [1977-1] Trade Cases (CCH) ¶ 61,274 (N.D. Ill. 1977); United States Dental Inst. v. American Ass'n of Orthodontists, 396 F. Supp. 565 (N.D. Ill. 1975). See also Marrese v. American Academy of Orthopaedic Surgeons, 496 F. Supp. 236 (N.D. Ill. 1980); Selman v. Harvard Medical School, [1980-2] Trade Cases (CCH) ¶ 63,371 (S.D.N.Y. May 21, 1980).
5 By communicative behavior, I mean the mere expression of ideas and facts standing alone, without any physical consequences; by noncommunicative behavior, I mean acts that may involve speech but that also have direct physical consequences. For a discussion of this distinction, see Tribe, infra note 84, at § 12-2.
6 For contrary views, which give little or no consideration to the first amendment, see First, Competition in the Legal Education Industry (II): An Antitrust Analysis, 54 N.Y.U.L. Rev. 1049 (1979)Google Scholar; Note, Restrictive Practices in Accreditation of Medical Schools: An Antitrust Analysis, 51 S. Cal. L. Rev. 657 (1978)Google Scholar. Cf. Letter from Clark C. Havighurst and Gaylord C. Cummins to Dr. Ernest C. Boyer, U.S. Commissioner of Education (Designate) (Mar. 9, 1977) (noting substantial antitrust harms from medical school accreditation by the Liaison Committee on Medical Education as a reason for withdrawing federal approval from the LCME); Schwartz, supra note 2 (a similar argument).
7 15 U.S.C. §§ 1-7 (1976).
8 The Federal Trade Commission Act, 15 U.S.C.A. §§ 41-58 (1976), which authorizes the Federal Trade Commission (FTC) to prohibit “unfair methods of competition,” id. § 45(a)(1), also may be relevant to medical credentialing. While this Act may apply to some anticompetitive behavior that is not reached by the Sherman Act, the core meaning of “unfair methods of competition” is provided by judicial and FTC precedents that define restraints of trade and monopolization under the Sherman Act. See Federal Trade Comm'n v. Brown Shoe Co., Inc., 384 U.S. 316 (1966). In addition, the FTC has no jurisdiction over truly nonprofit organizations, and this may limit its ability to bring antitrust complaints against nonprofit credentialing agencies. 15 U.S.C. § 44 (1976). But see American Medical Ass'n v. Federal Trade Comm'n, [1980-2] Trade Cases (CCH) ¶¶ 63,569, 77,026 (2d Cir. Oct. 7, 1980) (business aspects of the American Medical Association fall within the scope of the FTC Act even if they are secondary to the charitable and social aspects of their work). The other federal antitrust laws, the Clayton and Rovin-Patman Acts, deal with specific kinds of anticompetitive behavior that are not likely to arise in credentialing situations.
9 15 U.S.C. § 1 (1976).
10 Id. § 2.
11 See generally Flynn, Introduction, Antitrust Jurisprudence: A Symposium on the Economic, Political and Social Goals of Antitrust Policy, 125 U. Penn. L. Rev. 1182 (1977)CrossRefGoogle Scholar. But cf. R. Bork, The Antitrust Paradox: a Policy at War With Itself (1978) (arguing that consumer welfare is the only ultimate goal that is appropriate for antitrust law).
12 See, e.g., Eastern States Retail Lumber Dealers’ Ass'n v. United States, 234 U.S. 600 (1914).
13 See, e.g., Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm'n, 312 U.S. 457 (1941).
14 See, e.g., Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959).
15 Group boycotts are agreements by two or more parties not to deal with their competitors or with persons and institutions that do business with such competitors. See cases cited in notes 12-14 supra.
16 Unreasonable product certification practices by trade associations may include the setting of both standards and procedures that are used by an association in a way that unreasonably excludes particular competitors from obtaining certification for their product's. See, e.g., Structural Laminates, Inc. v. Douglas Fir Plywood Ass'n, 261 F. Supp. 154 (D. Or. 1966), aff'd, 399 F.2d 155 (9th Cir. 1968), cert, denied, 393 U.S. 1024 (1969).
17 See, e.g., United States v. Topco Assocs., Inc., 405 U.S. 596 (1972); United States v. Associated Patents, Inc., 134 F. Supp. 74 (E.D. Mich. 1955), aff'd per curiam, 350 U.S. 960 (1956).
18 See First, Competition in the Legal Education Industry (I), 53 N.Y.U.L. Rev. 311, 313 (1978)Google Scholar; Kessel, The AMA and the Supply of Physicians, 35 Law & Contemp. Prob. 267 (1970)CrossRefGoogle Scholar; Havighurst & Cummins, supra note 6.
19 See Note, Restrictive Practices in Acceditation of Medical Schools: An Antitrust Analysis, supra note 6. Cf. First, supra note 6 (similar antitrust problems with the accreditation of law schools by the Association of American Law Schools).
20 See generally R. Stevens, American Medicine and The Public Interest (1971).
21 “[A]n extragovernmental agency which prescribes rules and provides extrajudicial tribunals … ‘trenches on the powers of the national legislature and violates the [antitrust] statute.'” Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm'n, 312 U.S. 457, 465-66 (1941) (quoting Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 242 (1898)).
22 See Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm'n, 312 U.S. 457 (1941). See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); United States v. Trenton Potteries Co., 273 U.S. 392 (1927).
23 312 U.S. 457 (1941).
24 See text accompanying notes 28-29 infra.
25 See text accompanying note 33 infra.
26 For a discussion of the Rule of Reason, see Chicago Bd. of Trade v. United States, 246 U.S. 231, 238 (1917).
27 For a discussion of antitrust's Rule of Reason and per se approaches to analyzing anticompetitive behavior, see National Soc'y of Professional Engineers v. United States, 435 U.S. 679 (1978); L. Sullivan, Handbook of the Law of Antitrust 165-97 (1977).
28 421 U.S. 773 (1975).
29 435 U.S. 679 (1978).
30 See 421 U.S. at 785-88.
31 Id.
32 Id. at 787.
33 See United States Dental Inst. v. American Ass'n of Orthodontists, 396 F. Supp. 565 (N.D. Ill. 1975); Veizaga v. National Board for Respiratory Therapy, [1977-1] Trade Cases (CCH) ¶ 61,274 (N.D. Ill. 1977).
34 See 421 U.S. at 781-83.
35 421 U.S. at 788 n.17.
36 See, e.g., Boddicker v. Arizona State Dental Ass'n, 549 F.2d 626 (9th Cir.), cert, denied, 434 U.S. 825 (1977); Bauer, Professional Activities and the Antitrust Laws, 50 Notre Dame Law. 570, 584-92 (1975)Google Scholar.
37 See Veizaga v. National Board for Respiratory Therapy, [1977-1] Trade Cases (CCH) ¶ 61,274 (N.D. Ill. 1977). Cf. Feminist Women's Health Center, Inc. v. Mohammad, 415 F. Supp. 1258, 1263 (N.D. Fla. 1976), rev'd on other grounds, 586 F.2d 530 (5th Cir. 1978), cert, denied, 100 S. Ct. 262 (1979) (availability of a “good faith” defense against the application of per se rules to professional activity). See generally Kissam, Health Maintenance Organizations and the Role of Antitrust Law, 1978 Duke L.J. 487, 503-08Google Scholar.
38 435 U.S. at 687-96.
39 See id. at 686-92.
40 Id. at 696 (footnote omitted).
41 432 F.2d 650 (D.C. Cir.), cert, denied, 400 U.S. 965 (1970).
42 Id. at 654.
43 Id.
44 The facts of Marjorie Webster should be distinguished from the “political boycott” given first amendment protection from the Sherman Act in Missouri v. National Organization for Women, [1980-1] Trade Cases (CCH) ¶ 63,260 (8th Cir. 1980). Although both credentialing standards and political boycotts may have adverse effects upon competition in commercial markets, the credentialing association in Marjorie Webster was acting in a way that would affect competitors of the association's members, while the political boycotters in National Organization for Women were seeking, and could gain, only political benefits from the success of their action. The possibility of harm to competitors, and of consequent commercial benefits for the wrongdoers, appears to distinguish the Marjorie Webster situation from a political boycott, which would seem to be much less suspect, from an antitrust point of view, than behavior like that involved in Marjorie Webster.
45 See First, supra note 18; Havighurst & Cummins, supra note 6; Kessel, supra note 18; Note, Restrictive Practices in Accreditation of Medical Schools: An Antitrust Analysis, supra note 6.
46 See Kissam, supra note 37, at 506-07.
47 See Chicago Bd. of Trade v. United States, 246 U.S. 231; 238 (1917).
48 432 F.2d at 655-57.
49 396 F. Supp. 565 (N.D. Ill. 1975).
50 [1977-1] Trade Cases (CCH) ¶ 61,274 (N.D. Ill. 1977).
51 See id.; United States Dental Inst. v. American Ass'n of Orthodontists, 396 F. Supp. 565, 580 (N.D. Ill. 1975).
52 396 F. Supp. at 580-81.
53 475 F. Supp. 1123 (E.D.N.Y. 1979).
54 See notes 34-40 supra and accompanying text.
55 [1980-2] Trade Cases (CCH) ¶ 63,371 (S.D.N.Y. May 21, 1980).
56 Id. at 75, 887.
57 Id.
58 See Report, Medical Education in the United States 1977-1978, 240 J.A.M.A. 2819 (1978)Google Scholar.
59 See Note, Restrictive Practices in Accreditation of Medical Schools: An Antitrust Analysis, supra note 6, at 657 n.3.
60 For a discussion of the historical development of medical school accreditation in the United States and its close relationship to the development of state licensing of physicians, see Stevens, supra note 20, at 55-74; Kessel, supra note 18.
61 For a discussion of the close relationship between physician-assistant and nurse practitioner credentialing and state regulation of these practitioners, see Kissam, Physician's Assistant and Nurse Practitioner Laws: A Study of Health Care Reform, 24 U. Kan. L. Rev. 1, 25–26, 37-48 (1975)Google Scholar.
62 See United Mine Workers v. Pennington, 381 U.S. 657 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). See generally Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 80 (1977)CrossRefGoogle Scholar.
63 For an application of the sham exception to the Noerr-Pennington doctrine, see California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).
64 See note 62 supra.
65 NAACP v. Alabama, 357 U.S. 449 (1958).
66 In Feminist Women's Health Center, Inc. v. Mohammad, 586 F.2d 530 (5th Cir. 1978), cert, denied, 100 S. Ct. 262 (1979), the Court of Appeals rejected as spurious a Noerr-Pennington claim by a hospital's obstetrics-gynecology staff that its discussions about the inadequate quality of a competing abortion clinic were simply part of the staff's ultimate petition to a state official. Id. at 541-42. This case should not be read, however, as holding that the indirect petitioning of government by medical agencies is ineligible for Noerr-Pennington protection. The Court of Appeals was reviewing a district court's summary judgment for the defendants, and thus was required to read all factual allegations in a light most favorable to the plaintiff. These allegations, thus read, clearly made out a case for a group boycott by the hospital's obstetrics-gynecology staff against the abortion clinic. Id. at 535-39. This noncommunicative activity, however, is hardly part of a petition to a state official and should not qualify for Noerr-Pennington protection. See notes 114-22 infra and accompanying text.
67 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972).
68 Id. at 511.
69 This situation, although fictional, was suggested to the author by his experience in trying to obtain licensure approval in 1972 from the New York State Health Department for two different physician-assistant training programs. One case was won, and the other lost, but the Health Department disclosed nothing but vague guidelines and conclusory statements to explain why one program (which was to be sponsored by a medical school in New York City) was denied licensure. We could only speculate that the real reason was the competitive nature of this program, which promised to provide relatively low-cost care and to offer somewhat innovative types of physician-assistant training.
70 373 U.S. 341 (1963).
71 Haven't most applicants to the Bar believed, at least once in their lives, that the pass/fail line on bar examinations is established in this manner?
72 See, e.g., ABA, Approval of Law Schools: American Bar Association Standards .and Rules of Procedure, Standard 308 (1977) (Standards for the Approval of Law Schools) (transfer students may be admitted only if the “admitting school is satisfied that the quality of … the prior school was at least equal to that required for an approved school“).
73 See, e.g., Pinsker v. Pacific Coast Soc'y of Orthodontists, 12 Cal. 3d 541, 526 P.2d 253, 116 Cal. Rptr. 245 (1974).
74 See, e.g., Higgins v. American Soc'y of Clinical Pathologists, 51 N.J. 191, 238 A.2d 665 (1968).
75 See Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals 81-82 (ed. 1979).
76 AMA House of Delegates, Essentials of an Approved Educational Program for the Assistant to the Primary Care Physician (Dec. 1971). See also Kissam, supra note 61, at 44-51.
77 AMA House of Delegates, Employment of Physicians Assistants (June, 1972). See also Kissam, supra note 61, at 55-57.
78 See generally Williams, & Brook, Quality Measurement and Assurance: A Review of Recent Literature, Health & Med. Care Serv. Rep. 1, 7-9 (May/June 1978)Google Scholar.
79 See note 18 supra and accompanying text.
80 See notes 116-22 infra and accompanying text.
81 The leading cases that condemn such boycotts are United States v. General Motors Corp., 384 U.S. 127 (1966); Silver v. New York Stock Exch., 373 U.S. 341 (1963); Klor's Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959); American Medical Ass'n v. United States, 317 U.S. 519 (1943); Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm'n, 312 U.S. 457 (1941).
82 See, e.g., Structural Laminates, Inc. v. Douglas Fir Plywood Ass'n, 261 F. Supp. 154 (D. Or. 1966), aff'd, 399 F.2d 155 (9th Cir. 1968), cert, denied, 393 U.S. 1024 (1969); United States v. Johns-Manville Corp., [1967] TRADE CASES (CCH) ¶ 72,184 (E.D. Pa.); United States v. Johns-Manville Corp., 259 F. Supp. 440, 453-54 (E.D. Pa. 1966).
83 See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 100 S. Ct. 2343, 2349-51 (1980); Friedman v. Rogers, 440 U.S. 1, 10 n.9 (1979); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
84 See Tribe, L., American Constitutional Law § 12–15 (1978)Google Scholar.
85 Id. §§ 12-1-12-2.
86 See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 (1976).
87 For a discussion of the nature of the Federal Trade Commission's regulation of false, deceptive, and misleading advertising, see G. Robinson, E. Gellhorn & H. Bruff, The Administrative Process 469-72 (2d ed. 1980); Millstein, The Federal Trade Commission and False Advertising, 64 Colum. L. Rev. 439 (1964)CrossRefGoogle Scholar. In particular, it should be noted that “subjective” advertising claims are not actionable unless they can be “objectively disproved.” See, e.g., Carlay C. v. Federal Trade Comm'n, 153 F.2d 493 (7th Cir. 1946); Bristol-Myers Co., 46 F.T.C. 162, aff'd, 185 F.2d 58 (4th Cir. 1950). Credentialing standards and judgments that are based merely on professional opinion would appear to be quite subjective and rarely subject to objective disproof. See note 78 supra and accompanying text.
88 See generally Scanlon, A Theory of Freedom of Expression, 1 Philosophy & Pub. Affairs 204 (1972)Google Scholar.
89 See, e.g., Birenbaum & Kamarck, “Freedom of Commercial Speech Threatened by Friedman Decision,” Nat'l L.J., Apr. 23, 1979, at 20, col. 1; Havighurst, Professional Restraints on Innovation in Health Care Financing, 1978 Duke L.J. 303, 357 n.226Google Scholar.
90 For a discussion of the conceptual difficulties in drawing this line, see Wellington, On Freedom of Expression, 88 Yale L.J. 1105 (1979)CrossRefGoogle Scholar.
91 Compare Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 100 S. Ct. 2343, 2350 (1980) (regulation of commercial speech must promote a substantial governmental interest by the least restrictive alternative) with Jackson, & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 25-40 (1979)CrossRefGoogle Scholar (suggesting that a more deferential review of commercial speech regulation would be consistent with the rational basis test that usually is applied in the constitutional review of state economic regulations and thus would be a more appropriate standard for protecting commercial speech under the first amendment).
92 See Farber, Commercial Speech and First Amendment Theory, 74 Nw. U.L. Rev. 372, 384-99 (1979)Google Scholar. But see National Comm'n on Egg Nutrition v. Federal Trade Comm'n, 570 F.2d 157 (7th Cir. 1977), cert, denied, 439 U.S. 821 (1978); Barrett, “The Unchartered Area“—Commercial Speech and the First Amendment, 13 U.C.D.L. Rev. 175, 202-05 (1980)Google Scholar. Different levels of protection under the first amendment for three categories of speech (political speech and the two categories of commercial speech suggested in the text) would be analogous to the three tiers of judicial scrutiny of state action under the equal protection clause. See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L.J. 727 (1980)Google Scholar.
93 100 S. Ct. 2343 (1980).
94 Id. at 2350 (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456-57 (1978)).
95 Id.
96 In Central Hudson Gas, the Supreme Court held that, in view of our country's dependence on energy resources beyond our control, a state's attempt to promote energy conservation was supported by a substantial government interest. Id. at 2352. The federal government's interest in promoting economic competition, which also may save resources by promoting efficiency, would appear to be similarly substantial. If credentialing standards are obstructing competition and wasting resources, an antitrust attack upon the standards may be a direct means of reaching the desired social end of increased competition and efficiency.
97 For a critical analysis of Central Hudson Gas and related cases, see Cox, Foreword: Freedom of Expression in the Burger Court, 94 Harv. L. Rev. 1, 26-39 (1980)CrossRefGoogle Scholar; Note, The Supreme Court, 1979 Term, 94 Harv. L. Rev. 77, 159-69 (1980)Google Scholar.
98 See, e.g., Von Kalinowski, J., 11 Antitrust Laws & Trade Regulation, § 75.04 (1980)Google Scholar.
99 See, e.g., Structural Laminates, Inc. v. Douglas Fir Plywood Ass'n, 261 F. Supp. 154 (D. Or. 1966), aff'd, 399 F.2d 155 (9th Cir. 1968), cert, denied, 393 U.S. 1024 (1969) (no antitrust violation despite the association's five-year delay in approving plaintiff's new form of plywood, which was based on new technology not immediately available to most competitors and had passed performance tests for certified plywood, but did not satisfy a structural definition for certified plywood used in the association's existing standard); Hughes Tool Co. v. Motion Picture Ass'n, 66 F. Supp. 1006 (S.D.N.Y. 1946) (no antitrust violation despite the association's withdrawal of a seal of approval from a successful commercial film because of some mildly scandalous advertising, in good part, apparently, because the district judge was unwilling to interfere with the association's purpose to establish and maintain the highest possible moral and artistic standards in motion picture production).
100 See, e.g., United States v. Johns-Manville Corp., [1967] Trade Cases (CCH) ¶ 72,184 (E.D. Pa.); United States v. Johns-Manville Corp., 259 F. Supp. 440 (E.D. Pa. 1966). These cases involved an antitrust challenge to some collective lobbying by defendants for adoption of two product certification standards that would exclude foreign competitors from the sale of asbestos pipe in the United States. The court held for the defendants, but only after an apparently careful review of the testimony and judicial findings (1) that the defendants’ proposed standards were supported by substantial evidence of their technical justification, and (2) that there was no scientific evidence to support the government's contention that the standards lacked such justification.
101 See Von Kalinowski, supra note 98; Jacobs, Statistical, Standardization and Research Activities, 6 ABA Antitrust Section 80, 83–86 (1955)Google Scholar; See generally Verleger, Trade Association Participation in Standardization and Simplification Programs, 27 ABA Antitrust Section 129 (1965)Google Scholar; Note, Trade Association Exclusionary Practices: An Affirmative Role for the Rule of Reason, 66 Colum. L. Rev. 1486, 1486 (1966)CrossRefGoogle Scholar.
102 Kissam, Antitrust Law, The First Amendment, and Professional Self-Regulation of Technical Quality, in Blair, R. & Rubin, S., Regulating The Professions 143, 164 (1980)Google Scholar.
103 Id. at 145.
104 See notes 38-40 supra and accompanying text.
105 A relative value study is a table of individual medical procedures in which each procedure is assigned a proportional weight for purposes of physician compensation. See Arizona v. Maricopa County Medical Soc'y, [1980-1] Trade Cases (CCH) ¶ 63,139 (9th Cir. Mar. 20, 1980), modified, [1980-1981 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 62,573 (9th Cir. Apr. 28, 1980), cert, granted, 49 U.S.L.W. 3658 (U.S. Mar. 9, 1981).
106 See Havighurst, & Kissam, The Antitrust Implications of Relative Value Studies in Medicine, 4 J. Health Pol. Pol'y & L. 48 (1979)CrossRefGoogle Scholar: Havighurst, Health Maintenance Organizations and the Market for Health Services, 35 Law & Contemp. Prob. 716, 766-77 (1970)CrossRefGoogle Scholar. See also Kissam, supra note 102, at 155-56.
107 475 F. Supp. 1123 (E.D.N.Y. 1979).
108 [1980-2] Trade Cases (CCH) ¶ 63,371 (S.D.N.Y. May 21, 1980).
109 See Kessel, supra note 18, at 271.
110 In commenting on a draft of this Article, Clark Havighurst suggested that economic competition and consumers might be better off if a new group of certified specialists had been created instead of merging the old practitioners with the new, although this argument would raise difficult questions concerning whose opinion ought to be accepted about the degree of product differentiation in medicine. Too much product differentiation —as well as too little—could confuse and mislead consumers.
111 See, e.g., notes 49-50 supra.
112 A joint practice statement is an agreement in which two or more professional societies define appropriate norms of care for a given area of medical practice. See, e.g., The National Joint Practice Commission, Statement on Medical and Nurse Practice Acts (1974), recommending that “[s]tate joint practice committees or other joint bodies of medicine and nursing” take or be given the initiative in controlling the “realignment and readjustment of nurse and physician roles.” See also Kissam, supra note 61, at 26 n.176, discussing the use of joint practice statements under some nurse-practitioner laws that authorize qualified nurses to engage in expanded medical roles.
113 See Randall, supra note 3, discussing the requirement that members of the American Society of Plastic and Reconstructive Surgeons be board certified and the Federal Trade Commission's suspicion that this unreasonably excludes other plastic surgeons from obtaining such benefits as the right to attend scientific meetings or to publish announcements in the society's journal.
114 See note 81 supra.
115 See American Medical Ass'n v. United States, 317 U.S. 519 (1943). Cf. Kissam, supra note 37, at 503-08 (discussing application of antitrust's per se rule to anti-HMO boycott behavior by fee-for-service physicians).
116 Ohio v. Joint Comm'n on Accreditation of Hosps., Civ. Action No. C-2-79-1158 (S.D. Ohio, filed Dec. 14, 1979). This complaint is summarized in [1980] Antitrust & Trade Reg. Rep. (BNA) D-2 (Jan. 24, 1980).
117 See note 75 supra and accompanying text.
118 An alternative theory would attack the JCAH standard as an unreasonable product certification standard. If this were so, the analysis in the previous two sections of this paper could be applied to this issue. In particular, see notes 72-80 supra and accompanying text.
119 For a discussion of the nature and role of residency review committees for the different medical specialties, see Stevens, supra note 20, at 389-409. Today, these committees report to the Liaison Committee on Graduate Medical Education, which is the formal accrediting body for hospital residency programs in all specialties. See Report, Medical Education in the United States, supra note 58, at 2837.
120 Havighurst, supra note 89, at 344-49, 355-58.
121 See note 80 supra and accompanying text.
122 See, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); American Column & Lumber Co. v. United States, 257 U.S. 377 (1921) (speech used merely as a means of illegal conduct is not protected by the first amendment). See also Scanlon, supra note 88.
123 See United States v. Topco Assocs., Inc., 405 U.S. 596 (1972); United States v. Associated Patents, Inc., 134 F. Supp. 74 (E.D. Mich. 1955), aff'd per curiam sub nom. Mac Inv. Co. v. United,States, 350 U.S. 960 (1956).
124 See Kissam, supra note 102, at 166-67.
125 Id.
126 See Kissam, supra note 102, at 167.
127 See Stevens, supra note 20, at 212-15, 345-47.
128 Id. at 98-266, 318-47.
129 See id.
130 435 U.S. at 696-99.
131 See Stevens, supra note 20, at 212-15.
132 For a discussion of the usefulness of clear antitrust guides for professional conduct, see Havighurst, supra note 89, at 363-69.