Controlling Unjustified,Anticompetitive State and Local Regulation: Where is Attorney General “Waldo”?

Abstract

State and local regulations frequently impose unnecessary anticompetitive restrictions on the market. The challenge is to develop the legal and institutional strategies that can constrain regulation more closely to legitimate public interest goals. This article documents the range of anticompetitive interventions ranging from statutes through agency regulation and local ordinances. The theory of public choice and special interest influence in the legislative and administrative processes explain these observations. Second, the article argues that state attorneys general ought to be in the forefront of challenging such regulations, but the record reveals that often attorneys general defend such regulations. Third, the article identifies statutory, doctrinal, and institutional innovations that could ensure more focused and consistent evaluation of such anticompetitive regulations. Finally, there is acknowledgment that it may be difficult for attorneys general to become the advocates for competition against unnecessary regulation that the public interest requires.