USD Law Prof Bob Fellmeth Quoted in LA Times Article on Crosshairs of SCOTUS Ruling and State Regulatory Boards

USD Law Prof Bob Fellmeth Quoted in LA Times Article on Crosshairs of SCOTUS Ruling and State Regulatory Boards

Los Angeles (March 30, 2015) – University of San Diego (USD) School of Law Professor Robert C. Fellmeth was quoted in a Los Angeles Times article that reported how California’s state regulatory boards are handling a February 25 U.S. Supreme Court ruling on N.C. State Board of Dental Examiners v. Federal Trade Commission. The court found that if a “controlling number” of a board's members are active participants in the business it regulates, they could be sued as antitrust violators.

Although the case involved North Carolina's board of dental examiners, its nationwide impact could be immense. In California, state officials have been slow to acknowledge its implications. The Department of Consumer Affairs, which encompasses as many as 40 boards, says it hasn't yet figured out how it applies. The state Senate Committee on Business, Professions and Economic Development has asked legislative counsel to examine the Supreme Court decision, but it isn't expecting a report until next month.

Hanging in the balance is the state's ability to regulate not only barbers and pet groomers, but also doctors and surgeons, nurses, chiropractors, optometrists, accountants, architects, lawyers, pest exterminators and security alarm installers.

According to Fellmeth, a veteran antitrust expert who is a professor of law and the executive director of the Center for Public Interest Law at USD School of Law, February's decision means the vast majority of commissions and boards in all 50 states are “untenable and illegal." The court has established, in his own words, that "the king has been wearing no clothes for the last 72 years."

The ruling doesn't provide states with much guidance on what to do next. Justice Samuel A. Alito Jr., writing for the dissenters, argued that removing "active market participants" as a "controlling number" of board members—Kennedy's phrasing—leaves vague whether insiders can't be a majority or can't even constitute "a voting bloc that is generally able to get its way."

In Sacramento, legislators may consider simply "removing active participants from the boards," Hill says—reconstituting the boards as advisory panels for boards comprising only members of the public and empowered to set regulations and enforce them. The Legislature has been trying to strengthen the public voice on regulatory boards anyway, by giving majorities to their public members. The Supreme Court ruling may hasten the process, while answering the old question of who watches the watchmen. In the wake of the court's decision, the job belongs to the public.

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About Robert Fellmeth

Robert Fellmeth is the Price Professor of Public Interest Law at the University of San Diego School of Law, where he teaches and writes in the areas of children's rights, regulation, antitrust, and consumer law. Professor Fellmeth is also the executive director of both USD’s Center for Public Interest Law and Children's Advocacy Institute.

About the University of San Diego School of Law

Celebrating 60 years of alumni success, the University of San Diego (USD) School of Law is recognized for the excellence of its faculty, depth of its curriculum, and strength of its clinical programs. Each year, USD educates approximately 900 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest and taxation.

USD School of Law is one of the 81 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school’s faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 23rd worldwide in all-time faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, nonprofit, independent, Roman Catholic university chartered in 1949.

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