Cite as: 504 U. S. 621 (1992)
Rehnquist, C. J., dissenting
donment of some state programs because private individuals will not take the chance of participating in them. That is true, moreover, not just in the "negative option" context, but even in a context such as that involved in Patrick v. Burget, 486 U. S. 94 (1988): Private physicians invited to participate in a state-supervised hospital peer review system may not know until after their participation has occurred (and indeed until after their trial has been completed) whether the State's supervision will be "active" enough.
I am willing to accept these consequences because I see no alternative within the constraints of our "active supervision" doctrine, which has not been challenged here; and because I am skeptical about the Parker v. Brown, 317 U. S. 341 (1943), exemption for state-programmed private collusion in the first place.
Chief Justice Rehnquist, with whom Justice O'Connor and Justice Thomas join, dissenting.
The Court holds today that to satisfy the "active supervision" requirement of state-action immunity from antitrust liability, private parties acting pursuant to a regulatory scheme enacted by a state legislature must prove that "the State has played a substantial role in determining the specifics of the economic policy." Ante, at 635. Because this standard is neither supported by our prior precedent nor sound as a matter of policy, I dissent.
Immunity from antitrust liability under the state-action doctrine was first established in Parker v. Brown, 317 U. S. 341 (1943). As noted by the majority, in Parker we relied on principles of federalism in concluding that the Sherman Act did not apply to state officials administering a regulatory program enacted by the state legislature. We concluded that state action is exempt from antitrust liability, because in the Sherman Act Congress evidences no intent to "restrain state action or official action directed by a state." Id.,
641
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