I. Introduction
II. A Brief History of Attorney Advertising
III. The Antitrust Laws
IV. Three Methods of Analyzing a Section 1 Violation
    1. Per Se Violations
    2. Rule of Reason
    3. "Quick Look" Rule of Reason
V. Supreme Court Decision of California Dental Association v. Federal Trade Commission
    A. What About Market Power?
    B. Justice Breyer's Dissent
VI. Protecting Society Against Professionals?
VII. Federal Trade Commission v. Indiana Federation of Dentists
VIII. Goldfarb et ux. v. Virginia State Bar et al.
IX. Arizona v. Maricopa County Medical Society
X. The Strength of the Cal Dental Decision
XI. Should We Allow Restrictions on Advertising?
XII. The Economics Case for Allowing Advertising By Professionals
XIII. Other Reasons for Condemning the Restrictions
XIV. What Does California Dental Mean to Practicing Attorneys?
XV. A Step Back in History
XVI. Conclusion

ENDNOTES

        A law practice is as much a business as it is a professional service establishment.  It provides services for its clients and charges them accordingly.  A law firm pays its employees, such as associate attorneys, legal assistants, and secretaries, an appropriate salary.  It also pays its partners the firm's profits.  A business is defined as the "[e]mployment, occupation, profession, or commercial activity engaged in for gain or livelihood." ³   Thus, a law practice is most certainly a business.
 
        Like other businesses, law firms can find it profitable to market their services to the public.  The increased competition among lawyers and law firms has led firms to adapt marketing strategies and advertising techniques that have been used for years by big businesses and accounting firms.⁴   Some forms of marketing in which law firms currently engage include the use of slogans on letterheads, glossy coffee table magazines, and other promotional materials to promote the firm's "brand."⁵   With the rise in the use of personal computers as well as globalization, many firms today are also using the Internet as a marketing medium.

        Simply by maintaining a web page on the Internet, a law firm can distribute information on developments in the law and thereby advertise its services to a virtually unlimited potential audience within a few hours over the Internet, instead of the days or weeks that it would take to disseminate the same news through traditional marketing. ⁶   What is even more impressive about the Internet is that through the use of a web page, even the smaller, younger firms and solo practitioners can convey an image to their potential clients that is every bit as sophisticated as the large, established firms.⁷   Therefore, the Internet has proven to be a valuable advertising tool for attorneys.

        Attorneys practicing in almost every area of the law and in every form of practice, from solo practitioners to the largest law firms have found it profitable, if not necessary, to advertise.  Yet it was not until 1977 in Bates v. State Bar of Arizona that the Supreme Court held that law firms had a First Amendment right to advertise. ⁸   Historically, advertising by attorneys was thought to have contributed to a lower public image of the legal profession and accordingly had been banned by the American Bar Association's original Canons of Legal Ethics in 1908. ⁹

        Since Bates a number of other Supreme Court opinions have struck down advertising bans or advertising restrictions imposed by professional associations on their members as violative of the antitrust laws, because they restrain competition.  These decisions have been a step forward in favor of attorney advertising.  However, in 1999, the Supreme Court took a step back in California Dental Association v. Federal Trade Commission¹⁰ (Cal Dental).

        Restrictions on attorney advertising disturb the delicate balance of the supply and demand for legal services.  This result invariably has antitrust implications.  This paper analyzes the effects of the Supreme Court's decision in Cal Dental on attorney advertising.  It begins with a brief history of attorney advertising.  Second, it provides a discussion on the antitrust laws of sufficient simplicity that a beginning law student with not even a rudimentary knowledge of antitrust law or economics can understand the basics.  Third, the paper discusses and analyzes the Cal Dental opinion and the consistency of its reasoning with the antitrust laws and prior Supreme Court decisions, as well as the economics theories on which those laws are based.  Fourth, it discusses other Supreme Court cases relating to restrictions on advertising by attorneys and other professionals with arguments against those restrictions.  Finally, it offers arguments for attorney advertising and against restrictions.  Throughout, this paper asserts that the Supreme Court was wrong in its Cal Dental decision.

  II. A Brief History of Attorney Advertising

        Attorney advertising has not always been seen in a favorable light.  Indeed, even today there are those who do not favor advertising by attorneys and who contend that it is unethical and that it contributes to a lower public perception of attorneys.  To cite the preservation of the legal profession's elite image as the reason for disallowing advertising is in essence a selfish statement when made by attorneys.  It would seem that the public's access to legal services should be more important than the perpetuation of an elite view of attorneys.  The opponents of the advertising, it would seem, are mainly attorneys from prestigious law schools and top law firms.¹¹

        To some, the mere thought of the advertising conjures up images of the obnoxious¹² television commercials aired in large cities, such as Los Angeles and Chicago, in which John Doe Attorney attempts to convince viewers that he can help them recover damages if they are experiencing pain in x, y, and z parts of their bodies.  During the summer of 2001, this author observed one commercial in the Chicago area in which an attorney targeting consumers harmed by a diet pill went so far as to profess that he himself had suffered the ill effects from taking Fen Phen.¹³   Mainly for the better, sometimes for the worse, Attorney advertising has come a long way.

        In England attorneys were educated and admitted to practice through the Inns of Court.¹⁴   Because the Inns of Court admitted only a limited number of attorneys, lawyers developed close associations with fellow lawyers. ¹⁵   The attorneys did not compete with each other for clients in part because of their understood etiquette and collegiality and in part because of the few attorneys that existed compared to the large demand for legal services. ¹⁶

        During the Colonial period in America, attorneys continued to be influenced by the Inns of Court, because they were still obtaining their legal education in England. ¹⁷   However, because lawyers were seen as the guardians of American aristocracy and as such "undemocratic," the states began to update the admissions requirements to encourage entry into the profession.¹⁸   The legal profession grew dramatically in the 19th century, from 22,000 attorneys in 1850, to 114,000 attorneys at the start of the 20th century. ¹⁹

        Attorney advertising was common in the 19th century, in the form of classified ads in newspapers, handbills ²⁰ , business cards, and notices in city directories.²¹   At that time, advertising by attorneys was seen as naturally flowing from commerce and the growth of the legal community; it carried no stigma and was practiced by even the most highly regarded firms. ²²   The most famous lawyer to ever advertise was Abraham Lincoln. ²³   In 1852, Lincoln's law firm ran an ad in a newspaper that stated "Lincoln & Lamon, ATTORNEYS AT LAW, Having formed a co-partnership, will practice in the Courts of the Eighth Judicial Circuit, and the Superior Court, and all business entrusted to them will be attended to with promptness and fidelity...."²⁴  Lincoln was highly regarded among his fellow lawyers.²⁵
 
        In the latter half of the 19th century and the early part of the 20th century, there was a great influx into the legal profession, because of the relaxed admission requirements.²⁶  The profession felt threatened by increasing numbers of foreign-born and trained lawyers and feared they might exert influence over the American practice of law.²⁷  According to researchers, the ban on advertising in 1908 was one of the methods used to limit entry into the profession and limit trade.²⁸  The American Bar Association's original Canons of Professional Ethics²⁹ banned attorney advertisements.  It allowed the use of business cards, but disallowed circular advertisements, personal communications, and indirect advertisements.³⁰  The states adopted the Canons, and disciplined lawyers with sanctions, including disbarment, for violations.  During the Depression, law professor Karl Llewellyn observed that approximately two-thirds of the bar was either unemployed or underemployed and that at the same time approximately 80 per cent of the public was in need of legal services but lacked the means of making contact with an attorney.³¹

        Although after Bates the legal profession has allowed the use of attorney advertising, some restrictions continue to be adopted, and will continue to be adopted in the future, by State Bar Associations.  Because they restrict the trade of consumer services, the advertising restrictions violate the antitrust laws.

III. The Antitrust Laws

        The Sherman Act was passed by Congress in 1890.  The Act consists of eight short sections, and the brevity of the Act has invited much interpretation of its terms by the courts.  The two main sections of the Sherman Act are section 1³², which addresses horizontal combinations, and section 2³³, which addresses monopolies or attempts at monopoly.  This paper will focus on section 1.  Section 1 of the Sherman Act states that:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.  Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if by any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.³⁴

        Section 1 of the Sherman Act is directed toward conduct that is the product of an agreement among two or more actors and that significantly interferes with trade.³⁵  The following four arrangements make up the class of section 1 violations: cartels, joint ventures of competitors, market division agreements, and concerted refusals to deal.³⁶  If the agreement is between two or more firms who either are competitors, or are potential competitors, or who would be competitors but for the agreement,³⁷ it is considered a horizontal arrangement.³⁸

        Horizontal agreements can include such practices as price fixing, market divisions, and group boycotts.³⁹  Antitrust law is concerned with horizontal agreements, because they can lessen competition and thereby negatively affect output.  Congress found horizontal agreements in restraint of trade to be so injurious to society that it made such an act a felony.  The following example illustrates the government's concern with horizontal agreements.

        If the three gasoline stations in a small town agreed to raise gasoline prices by twenty-five cents (a naked price fixing agreement) and the next gasoline station was 100 miles away, it is quite likely that they would succeed in this effort to increase their prices and profits.  The town's inhabitants would likely not want to drive 100 miles to the next station, as any savings would necessarily be more than offset by the additional gas necessary to make the 200-mile round trip.  Therefore, they would pay the extra twenty-five cents per gallon of gasoline in their hometown.

        This increase in price would likely result in a lower output in sales of gasoline, because at the higher price the demand for gasoline would be lower.  To avoid paying the higher prices, some people might begin riding their bicycles, taking a bus, or simply walking to their destinations.  The agreement among the gasoline stations lessens, or eliminates, the competition that would otherwise moderate prices.  Without this agreement the dealers would be in direct competition with each other for customers, and they would be forced to compete based on merit or price.  The competition would tend to drive prices down closer to cost, and thus increase output, or sales.  This is a more favorable outcome for consumers and society as a whole.

        The result would be similar if the actors were dentists, and instead of a naked price fixing agreement, the dentists belonged to a dental association that imposed advertising restrictions on its members.  Under the terms of these restrictions, dentists would not be allowed to provide information in their advertisements to the public regarding the quality of their care or low price of their practice.  Such restrictions also lessen competition.  People who need dental care, but who cannot afford it, will not be well informed as they search for a lower priced alternative to the closest dentist.  Thus, demand for dental care by such individuals arguably would be reduced.  Similarly, people who are reluctant to see a dentist, because of their fear of pain, would not be able to identify those local dentists who make an extra effort at providing gentle care.  Arguably, the demand for dental care among these groups would also be reduced.  Therefore, especially in large cities where the dentist pool would be larger and word of mouth less effective, advertising restrictions would make it more difficult, if not impossible, for dentists to compete with each other to be the low cost leader or to provide the best in quality of care.  Thus, not only would their prices be higher, but quality of care might well be lower.

        The results would be similar if the actors were attorneys and the state bar association restricted attorney advertising under the pretense of a continued sense of professionalism.  If attorneys were not allowed to advertise based on low price, then those people who needed the advice of an attorney, but knew of the high cost of such advice, would be denied the ability to search for the low price alternatives.  These individuals may just have to forgo the legal advice, often with consequences for the general public as well as themselves.  Society would be worse off because of the restrictions.

        To prove a violation of section 1 of the Sherman Act, the plaintiff must prove three elements. First, it must prove that a contract, combination, or conspiracy among two or more separate entities actually exists.  Second, it must prove that the agreement unreasonably restrains trade.  Third, it must prove that the agreement affects interstate or foreign trade or commerce.⁴⁰

IV.  Three Methods of Analyzing a Section 1 Violation

        Sherman Act section 1 violations are analyzed under three different methods of analysis, depending on the egregiousness of the alleged violation: per se rule, rule of reason, and "quick look" rule of reason.

        1. Per Se Violations
        Some section 1 violations are considered by the courts to be so egregious that they are analyzed as per se violations without inquiry as to the actual ill effects of the § 1 violation or as to the market power, or lack thereof, of the defendants.  Examples of acts that would be per se violations are naked price-fixing agreements among competitors⁴¹, which are explicit agreements among competitors to fix prices without more, and maximum price fixing⁴², which are agreements among competitors as to the maximum price to be charged for products or services.  However, the societal harm of other agreements among competitors is not as intuitively obvious, and, therefore, the courts apply the Rule of Reason.
 
        2.  Rule of Reason
        The reasonableness test, or Rule of Reason, was first articulated by then Judge Taft in United States v. Addyston Pipe⁴³.  Under the rule of reason the "test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether is such as may suppress or even destroy competition."⁴⁴  It is used when courts have had little exposure to the industry, and, therefore, it requires a more thorough inquiry into the effects of the violation and, along with it, a determination of the defendants' market power.  Therefore, the per se rule, in saving the court the time involved in a long expensive investigation, is used when the court would have reached the same conclusion without the investigation.  The difference between an analysis under the per se rule and under a full rule of reason is how much evidentiary information the courts need to know before they can pass judgment on the legality of a particular act.⁴⁵
 
        3.  "Quick Look" Rule of Reason
        There is also a third method of analysis that the Supreme Court has used in deciding antitrust issues, the "quick look" analysis used in Federal Trade Commission v. Indiana Federation of Dentists.⁴⁶  In this decision, the Supreme Court approved a brief look into the defendant's market power.  This analysis is applied to restraints that are not per se unlawful but are sufficiently anticompetitive on their face that they do not require a full rule of reason analysis.⁴⁷  However, in the 1999 California Dental decision, the Supreme Court vacated an appellate court decision that had used the quick look analysis.

        The antitrust laws have been used in actions against individuals and corporations.  However, the courts have been clear to note that nonprofit organizations may also be subject to antitrust scrutiny if they restrain or otherwise negatively affect competition.  The Supreme Court has stated that

"[i]t may even be possible that a nonprofit entity up to no good would have certain advantages, not only over a for-profit member but over a for-profit membership organization as well; it would enjoy the screen of superficial disinterest while devoting itself to serving the interests of its members without concern for doing more than breaking even."⁴⁸

Of particular importance to this paper are the professional nonprofit organizations that set restrictions on activities by their members, such as dental associations or state bar associations.

V. Supreme Court Decision of California Dental Association v. Federal Trade Commission

        In Cal Dental, the Supreme Court analyzed advertising restrictions imposed on dentists by a nonprofit professional association.  The two issues on appeal were (1) whether the jurisdiction of the Federal Trade Commission (FTC) extends to the California Dental Association, a nonprofit professional association that provides substantial benefits to its for-profit members, and (2) whether a "quick look" analysis sufficed to justify the finding by the appellate court that the advertising restrictions imposed by the Dental Association violated the antitrust laws.⁴⁹

        First, the Supreme Court upheld the jurisdiction of the FTC.  The FTC Act gives the Commission authority over "persons, partnerships, or corporations."⁵⁰  The FTC Act defines corporation as "any company... or association, incorporated or unincorporated, which is organized to carry on business for its own profit or that of its members...."⁵¹ The Court declined to apply a threshold percentage of activity that the nonprofit organization would need to be engaged in for its members' benefit in order to fall within the jurisdiction of the FTC.  Instead the Court looked to the evidentiary findings to decide whether the Dental Association's activities subjected it to the FTC's jurisdiction.

        The evidence showed that the Dental Association provides its members with substantial benefits, such as advantageous insurance and preferential financing, and that it engages in lobbying, litigation, marketing, and public relations for its members interests.⁵²  The Administrative Law Judge noted that the Dental Association itself had "stated that a selection of its programs and services has a potential value to members of between $22,739 and $65,127."⁵³  Because of these findings, the Court had no problem in concluding that the FTC had jurisdiction over the association.  The court reserved the question of whether the FTC has jurisdiction over nonprofit organizations that do not confer profit on for-profit members but do show annual surpluses, engage in significant commerce, or compete in relevant markets with for-profit players.⁵⁴

        In reviewing the sufficiency of the quick look analysis performed by the appellate court, the Court observed that in cases in which the quick look analysis had been used, an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on consumers and markets.⁵⁵  The Court did not think that the facts in the case presented a situation in which the likelihood of anticompetitive effects was comparably obvious.  The majority stated that its divergence in opinion with Justice Breyer's dissent was that while Justice Breyer accepted the restrictions were general restrictions on advertisements of price and quality, the majority believed the advertising restrictions might plausibly be thought to have a net procompetitive effect, or no effect at all, on competition.⁵⁶

        Dentists that belonged to the California Dental Association were bound by the Code of Ethics promulgated by the Dental Association.  The section of the Code at issue states that:

"Although any dentist may advertise, no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any material respect.  In order to properly serve the public, dentists should represent themselves in a manner that contributes to the esteem of the public.  Dentists should not misrepresent their training and competence in any way that would be false or misleading in any material respect."⁵⁷

        To interpret the Code, the Dental Association had issued a number of advisory opinions.  The advisory opinions stated that statements are false or misleading under the Code when they relate to fees for any type of service without fully disclosing all relevant variables.⁵⁸   Another advisory opinion stated that advertising claims as to quality of service were likely to be false or misleading, because they were not susceptible to measurement or verification.⁵⁹  It is through these advisory opinions that the FTC alleged that the Dental Association had unreasonably restricted two types of advertising, price advertising, particularly discounted fees, and advertising related to the quality of services.

        The Court of Appeals thought that the Commission had improperly applied a per se analysis, but nevertheless upheld its decision under an abbreviated quick look analysis, because it found that the restrictions amounted to a naked restraint on price competition.  It found that the disclosures required in the event of price advertisement were infeasible, because they required such a long list of disclosures, namely the dollar amount of the nondiscounted fee, the dollar amount or percentage of discount for the discounted fee, the length of time that the discount will be offered, verifiable fees, and a list of specific groups who qualify for the discount or any other terms and conditions or restrictions.⁶⁰  Justice Breyer's dissent noted that the Commission heard testimony that "across the board discount advertising in literal compliance with the requirements 'would probably take two pages in the telephone book' and that 'nobody is going to really advertise in that fashion.'"⁶¹

        The Dental Association asserted, and the Supreme Court agreed, that the restrictions on discount and non-discount advertising were designed to avoid false or deceptive advertising and that such a restriction is necessary in a market where there are striking disparities between the information available to the professional and the patient.⁶²  The Supreme Court believed that the Dental Association's advertising restrictions might be found to have a net procompetitive effect or no effect at all on competition, but that the appellate court did not adequately use the full rule of reason analysis.

        The Supreme Court stated that the Court of Appeals failed to use the rule of reason in its analysis.  Under the rule of reason, the court must define the relevant geographic and product markets, analyze the defendant's market power, and assess the competitive or efficiency effects.  This usually requires an elaborate and expensive investigation.  However, the Court did state that the Court of Appeals need not apply the fullest market analysis.⁶³  It then reasoned that the "categories of analysis are less fixed than terms like 'per se,' 'quick look,' and 'rule of reason' tend to make them appear" and that there is no bright line between rule of reason or per se analysis.⁶⁴  The Supreme Court thus did not do much to clarify the instances when the rule of reason versus the quick look analysis is required.  Rather the five-member majority seemed to be concerned with applying a more thorough analysis to cases in which restrictions limit output.⁶⁵

A. What about Market Power?

        The Court did not discuss the question whether the defendant association had market power, although most antitrust cases begin with just such an analysis.  It is easy to understand why the market power of a firm would need to be estimated.  It would be absurd to decide that an association violated § 1 of the Sherman Act, which holds that contracts or combinations in restraint of trade or commerce are illegal, without a specific inquiry as to the actual or potential power of the defendant (i.e. market power) to actually effect such restraint of trade or commerce.  However, the Court stated that the Court of Appeals had found that the Commission's findings with respect to the existence of market power were all supported by substantial evidence.⁶⁶  The Court apparently agreed with this determination by the lower court and did not feel the need to discuss it.  It may have found market power in the evidentiary fact that 19,000 dentists belonged to the Dental Association, which included three-fourths of those dentists practicing in the state.⁶⁷

B. Justice Breyer's Dissent

        Justice Breyer wrote the dissenting opinion speaking for himself, Justice Stevens, Justice Kennedy, and Justice Ginsburg.  First he agreed that the Federal Trade Commission had jurisdiction over the California Dental Association for the same reasons stated by the majority.  As to the section 1 issue, he agreed with the majority that a full rule of reason analysis was required in the case, but he stated that even a traditional application of the rule of reason would require affirming the Federal Trade Commission's decision.⁶⁸  He stated that the "Commission's conclusion is lawful if its 'factual findings,' insofar as they are supported by 'substantial evidence,' 'make out a violation of Sherman Act § 1.'"⁶⁹  The four Justices dissented on this issue.
       
        Justice Breyer would have taken the Commission's findings of fact and asked four questions: (1) what is the specific restraint at issue; (2) what are its likely anticompetitive effects; (3) are there offsetting procompetitive justifications; and (4) do the parties have sufficient market power to make a difference?⁷⁰  Breyer then went on to consider the four questions in turn based on the Commission's findings of fact.

          As for the specific restraints, Breyer found them to be the restraints that resulted from § 10 of the California Dental Code of Ethics as that section is applied by the association.⁷¹  Breyer did not take the rule at face value like the majority seemed to do.  Breyer recognized that even though the rule may have been promulgated to prevent false or misleading advertising, in its application, the rule actually restrained truthful and nondeceptive advertising as well.⁷²  Breyer adopted the Commission's findings that in practice and according to the advisory opinions the rule restricted the following three forms of advertising:

(1) It 'precluded advertising that characterized a dentist's fees as being low, reasonable, or affordable,'
(2) It 'precluded advertising . . . of across the board discounts,' and
(3) It 'prohibited all quality claims.'⁷³

Therefore, the specific restraints at issue were advertising based on low price, across the board discounts, and advertising based on quality.

        Breyer stated that the question whether the rule was implemented by the Dental Association in such a manner as to actually restrain truthful and non-deceptive advertising of low prices, across-the-board discounts, and quality of service was a question of fact.  Then Breyer pointed to the evidence that in some instances the Association had recommended denial of membership to dentists that wanted to advertise such things as "reasonable fees quoted in advance," "major savings," "making teeth cleaning... inexpensive," "we guarantee all dental work for 1 year," "latest in cosmetic dentistry," and "gentle dentistry in a caring environment."⁷⁴  In addition, Breyer pointed to testimony that a dentist wanting to advertise an across-the-board discount in order to be in compliance with the requirements would probably take up two pages in the telephone book.⁷⁵  Breyer concluded that these restrictions had in fact restrained truthful and nondeceptive advertising.

        In answering the question whether the three restrictions have potential for adverse effects on competition, the dissenters thought this was obvious.  They cited to findings by the Commission that quality-based competition is important to dental consumers in California⁷⁶ and that the consumers base their selection of dental service providers in part on "information about the type and quality of service".⁷⁷  Because the restrictions do not allow dentists to advertise low price or quality, dentists will not be eager to compete based on price and/or quality.  If a well-established dentist with a large patient base knows that a new dentist or even another well-established dentist can not lure his patients away by advertising lower prices or higher quality of care, that well-established dentist will not have the incentive to lower his price or to increase the quality of his work.  In essence, what this means is that dentists belonging to the California Dental Association do not have to compete in price or quality.  This in the dissenters' minds shows a potential for genuine adverse effects on competition.⁷⁸

        The third question according to the dissenters is whether, despite their anticompetitive tendencies, the restrictions might be justified by offsetting procompetitive justifications.  The Dental Association argued that the restrictions are inextricably tied to the legitimate efforts to restrict false or misleading advertising.⁷⁹  The dissenters found no reason to accept the Dental Association's claim that it had to prevent the dentists from making the truthful advertising in order to protect consumers from unverifiable claims about price and quality.⁸⁰  As the dissent pointed out, in a section 1 Sherman Act case, it is the defendant's burden to establish a procompetitive justification.⁸¹  The dissent believed, and I think rightfully so, that the Court of Appeals was correct in its conclusion that no justification had been established by the defendant.

        The final question was whether the Dental Association had the market power necessary to make a difference and restrict competition.  The dissent again agreed with the Court of Appeals that the association had market power when it considered the testimonial that on average seventy per cent of the dentists in California belonged to the association, and that in some areas the enrollment was as high as ninety per cent.⁸²  In addition, due to the high barriers to entry in the dental profession with high education costs and high costs of opening a new dentistry office, the fact that the dentists placed high value on membership weighed in favor of finding the requisite market power.

        A big difference between the majority and the dissent seems to be the importance each placed on the fact that these were professionals being restricted.  The majority's opinion seemed to turn on the difference, while the dissent only gave the matter a cursory look.

VI. Protecting Society Against Professionals?

        The majority made much of the fact that these were restrictions against advertising by professionals.  It stated that

"[i]n a market for professional services, in which advertising is relatively rare and the comparability of services packages not easily established, the difficulty for customers or potential competitors to gather and verify information about the price and availability of services magnifies the dangers to competition associated with misleading advertising."⁸³

        The Court also seemed to have the opinion that lay people are incapable of monitoring the quality of "professional services" partly because of the specialized knowledge required to evaluate the services, and partly because it would be difficult to discern whether an unfavorable outcome is attributable to the quality of dental service or to biting into a tough walnut.⁸⁴  Well, surely a person would be able to distinguish between pain from a filling and pain from a tough walnut, especially having bitten into one, and even if she were not sure, a simple advertisement by a local dentist would lead her in the right direction to consult a dental specialist.  Furthermore, what kind of specialized knowledge does the Court assert that lay people would need to obtain in order to have a good idea whether the work done in their own mouth feels right or not.  The Court reached the conclusion that such lack of informed decision making by the consumer for professional services "immediately suggests that advertising restrictions arguably protecting patients from misleading or irrelevant advertising call for more than cursory treatment as obviously comparable to classic horizontal agreements to limit output or price competition."⁸⁵
       
        Is the Court just protecting the public from professionals?  Surely a patient can elect to change dentists after an unfavorable incident.  Surely a person would not choose to go back to the same dentist after having experienced a bad tooth filling, or a perceived higher cost, no matter how much advertising that dentist engages in.  At least this author once had to make that decision in California.  The Court speaks of the advertisements as if the ads had the capacity to effect a terrible harm to the patient's health, such as the death of the patient who relies on them, such as could be the case in erroneous prescription drug advertisements.  Even allowing for the advertisements, the dentist will still have to provide quality care and competitive prices, or else risk losing their entire customer base.

        Instead the Court allows the professions, in this case by way of their nonprofit professional associations, to engage in a form of price fixing, so long as the association advances a facially procompetitive or quasi-protectionist justification for it.  By not allowing for competition based on price, the association is perpetuating the fixture of high prices, and they are doing it by means of an "innocent-sounding" code of ethics.⁸⁶  Did the Supreme Court always give the professions such special treatment?  The following sub-sections analyze past Supreme Court cases that analyzed antitrust cases and professionals.

VII. Federal Trade Commission v. Indiana Federation of Dentists ⁸⁷

        In FTC v. Indiana Federation of Dentists,⁸⁸ a group of dentists refused to submit x-rays to dental insurers for use in benefits determinations.  As a result the insurers were forced to employ more expensive means of alternative benefits determinations, such as visiting the dental offices to review the x-rays.⁸⁹  Although the actions by the dentists in essence amounted to a boycott, which normally deserves a per se analysis,⁹⁰ the Supreme Court applied the rule of reason.  It stated that in the past the Court had "been slow to condemn rules adopted by professional associations illegal per se"⁹¹ (emphasis added), but it condemned the agreement under the rule of reason on the grounds that the anticompetitive effects were obvious.⁹²  Thus, the Supreme Court made clear that it would analyze the practices of professional associations in a different light under antitrust scrutiny than it would for regular businesses.

        Part of the reason for disparate treatment between the dentists in Indiana Federation of Dentists and California Dental might be that the parties harmed in the former were insurers and patients wanting coverage for their x-rays, and the parties at risk of being harmed in the latter were the dentists who were not allowed to advertise, at least according to the Supreme Court and the Dental Association.

VIII. Goldfarb et ux. v. Virginia State Bar et al.⁹³

        Goldfarb involved another professional organization, the State Bar of Virginia.⁹⁴  In that case, the defendant State Bar had published minimum fee schedules for its members, the attorneys in Virginia.⁹⁵  Although membership in the association was voluntary, the State Bar had power nonetheless because membership was required in order to practice law in Virginia.⁹⁶  The plaintiffs were husband and wife who wanted to obtain a title examination, which could only be performed by a member of the bar, and were unable to find an attorney in Fairfax, Virginia who would agree to charge less than the fee on the minimum fee schedule.⁹⁷  Although the State Bar had not formally disciplined attorneys for not adhering to the fee schedule, it had issued advisory opinions stating that in the event that an attorney habitually charges less than the "suggested minimum fee" this would raise a presumption that the lawyer was guilty of misconduct.⁹⁸

        The District Court held that the minimum fee schedule violated the Sherman Act and rejected the contention that "as a 'learned profession' the practice of law is exempt from the Sherman Act."⁹⁹  The Court of Appeals reversed and held that that the State Bar was immune under Parker v. Brown.¹⁰⁰  The Supreme Court reversed and held that "certain anticompetitive conduct by lawyers is within the reach of the Sherman Act,"¹⁰¹ and found that the fee schedules were in violation of the Sherman Act.¹⁰²

        Even though the Court treated the professionals as it would have treated a non-professional for-profit business in its antitrust analysis, it nevertheless included in its opinion the famous footnote 17.¹⁰³  In footnote 17 the Court warns that the professions may be treated differently from other business activities.  It states that:

"The fact that a restraint operates upon a profession as distinguished from a business is, of course, relevant in determining whether that particular restraint violates the Sherman Act.  It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas.  The public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently.  We intimate no view on any other situation than the one with which we are confronted today."¹⁰⁴

The footnote serves as a warning that the Supreme Court could treat the professions differently in antitrust issues, even though in the Goldfarb v. Virginia State Bar case it had not.

IX. Arizona v. Maricopa County Medical Society¹⁰⁵

        Arizona v. Maricopa County Medical Society also involved a professional association that passed restrictions on its members.  The Society was a nonprofit organization composed of licensed doctors in private practice.¹⁰⁶  About seventy per cent of the doctors in Maricopa County were members of the society.¹⁰⁷  The restrictions at issue in the case were a schedule of prices that fixed the maximum fees that participating doctors agreed to accept as payment in full for services performed under insurance plans that had been pre-approved by the Society.¹⁰⁸  The Society argued for a rule of reason to be applied, instead of the traditional per se rule that is applied to price-fixing violations, on the grounds that the agreements fix maximum prices (not minimum prices), the agreements are among professionals in an industry with which the court has little experience, and they are alleged to have procompetitive justifications.¹⁰⁹  The Supreme Court used the per se rule and found the restrictions in violation of the antitrust laws.  The Court cited to Albrecht v. Herald¹¹⁰ in stating that maximum price fixing can be just as harmful to competition as minimum price setting.¹¹¹  It stated that maximum price setting could be "a masquerade for an agreement to fix uniform prices, or it may in the future take on that character."¹¹²  The Court rejected the Society's claim that they should receive special treatment because of their status as professionals.¹¹³  Therefore, this case was consistent with the previous cases mentioned in its treatment of professionals.

X. The Strength of the Cal Dental Decision

        The California Dental decision seems to be a change in direction from the other cases mentioned above dealing with the professions.  The opinion was delivered by a highly divided Court.  What does the Supreme Court seem to be concerned with?

        The Supreme Court seems to be concerned primarily with protection of the masses, at the expense of either individual professionals or the professional associations.  When a rule promulgated by such an association has the effect of harming lay people, as the Court may perceive the threat, the Supreme Court will rule against it, as in the Goldfarb ruling.  However, when the rule has the effect of harming some of the professionals that comprise the association, the Court will sustain it if the association can set forth a justification that at least facially purports to protect lay people, such as in the Cal Dental ruling.

XI. Should We Allow Restrictions on Advertising?

        There are arguments for and against restricting advertisements by professionals.  The main argument for the restrictions is the fact that professionals have the specialized knowledge that consumers lack.  To protect consumers, professional associations try to pass rules to place limitations on certain types of advertising that may tend to deceive consumers.  Consumers may be deceived into paying higher prices or into choosing one professional over another on the basis of an erroneous quality claim. In the end, however many justifications we can think of for allowing professional associations to restrict advertising, there are, I believe, stronger reasons to condemn the restrictions.

XII. The Economics Case for Allowing Advertising By Professionals

        Advertising serves two main functions.  The first is that it increases the visibility of the advertising individual or firm.  The second is that it provides a medium for the flow of information.  Because these are also ways that increase competition, these two reasons make a strong case for closely scrutinizing restrictions in an antitrust case.

        The antitrust laws are designed to protect competition.¹¹⁴  A restraint is unreasonable if it adversely restricts competition.¹¹⁵  Advertising is a means for individuals or firms to market their products or services.  In marketing their services, firms will try to highlight those features that set them apart from other firms offering comparable services.  For some the distinguishing factor might be a more favorable or convenient location.  For others it may be high quality work or lower fees.  Whatever the claim, it allows the firms to compete with one another.  In the event that the firm engaged in false or misleading advertising, the kind of advertising the Court in California Dental wanted to prevent, the firm would inevitably suffer negative consequences in the immediate or eventual future.  Most likely the firm's consumers would not return, and the firm would eventually lose its customer base.  Furthermore, the unsatisfied customers would tell their friends, and the word would spread.  Of course, there is also the potential for a malpractice suit.  Eventually, the firm would be forced to get out of the business or else improve its quality of service or lower its prices.  In effect, competition can be likened to a survival of the fittest, where in the long run only the truthful survive.

        The California Dental Court felt that the risk of adverse effects to the consumer's health was too great in the market for dental services to ban the restrictions.  It argued that "[i]n a market for professional services, in which advertising is relatively rare and the comparability of service packages not easily established, the difficulty for customers or potential competitors to get and verify information about the price and availability of services magnifies the dangers to competition associated with misleading advertising."¹¹⁶  In putting forth this kind of reasoning, the Court is committing a sort of "cellophane fallacy"¹¹⁷ in characterizing the advertising of services as rare, without taking into consideration that the reason it is rare is because the advertising, and consequently the information flow, is already being restricted by the professional associations.  What better reason to allow more advertising than the Court's own observation!

        The second function that advertising serves is that it provides a medium for the flow of information.  In today's age, consumers want, nay they expect, to be bombarded with advertisements to aid them in making their day-to-day decisions.  Let us take, for example, the Internet.  Almost on every website do we see the most colorful, sometimes flashing, sometimes in full motion, advertisements touting even the most serious products and services.

        The last economics justification to banning the restrictions on advertising by professionals is that society is made better off by the ads.  The advertisements force professionals to compete, thus producing higher quality and lower prices in services overall.  Advertising makes prices transparent to consumers as well as to other competing professionals.  If an attorney or dentist can see that others are charging a lower price, she may feel pressure to reduce her own prices, even if by a small amount, thus effecting a positive outcome for society as a whole.

XIII. Other Reasons for Condemning the Restrictions

        Finally, we should be able to trust in the adequacy of our great American institutions to produce competent dentists and attorneys and other professionals.  We have standards restricting the people who can enter a profession, we have ethical standards professionals must uphold or risk losing their license, and we have remedies for people who may be harmed by a wayward professional.  If we trust that our system works, then why would we want to silence professionals in the marketplace?  This is not a case of a pharmaceutical company wrongfully advertising the use of a specific medicine that may harm a person if she consumes it for the wrong ailment or in the wrong dosage because of the advertising.

        We should allow people to make their own decisions, and if many dentists advertised on the basis of low prices, then the customer would have to make a decision through other means, rather than by the advertisement alone.  Also, lower fees may make it easier for a new dentist starting out in his own practice to acquire new patients.  It is wrong to withhold information about a lower price in dental care.  We are in an information age where people greatly value information.  Finally, I'd like to add that there exists a First Amendment freedom of speech right to advertise services, especially if it constitutes one's own livelihood.  In Bates et al. v. State Bar of Arizona, the attorneys who were banned from advertising reasonable fees in a newspaper asserted a First Amendment Constitutional defense.¹¹⁸  Although the Court held that the State was immune as a sovereign, it also held that advertising by attorneys could not be subjected to blanket suppression under the First Amendment.

XIV. What Does California Dental Mean to Practicing Attorneys?

        Under the California Dental decision, it seems that more deference will be given to state bar associations and the restrictions they place on attorneys.  Now courts applying California Dental to nonprofits engaging in such anticompetitive practices as price fixing will have to use the full rule of reason analysis, rather than the per se rule used in Arizona v. Maricopa County Medical Society.¹¹⁹  

        This will have negative consequences for society as well as the law practices themselves.  With an estimated 70 per cent of the population not receiving the legal services they need, a ban on low price advertising would make society even worse off.

XV. A Step Back in History

        The Cal Dental decision may be taking the state of attorney advertising a step back in history.  Researchers and commentators have reached the consensus that the main reason the Canons of Professional Ethics¹²⁰ first barred attorney advertising in 1908 was to limit entry into the profession and restrict trade.¹²¹  Around that time the legal profession was "experiencing a great influx in its numbers as a result of half a century of relaxed admission requirements"¹²² and attorneys felt threatened by the influence or eventual domination by foreign-born and trained lawyers who did not, according to the bar associations, understand the American tradition of law.¹²³  The ban on attorney advertising, used concurrently with methods of restrictions for bar admission, such as higher formal education requirements and character and fitness examinations, served to control and preserve the demographics of the bar.¹²⁴  If restrictions are a way for state bars to limit entry into the profession of fully able attorneys and to control the demographics of the bar, this is another reason against allowing the restrictions on attorney advertising.

XVI. Conclusion

        The decision in Cal Dental will have a negative effect on the way some attorneys run their practice or plan to run it in the future.  The decision will also have a negative impact on the public's access to legal and other professional services.  However, the decision is not a strong one, because it was a highly divided 5-4 split among the Justices.  As for restrictions by non-profit organizations in general, although the Court changed the analysis from "quick look" to a full rule of reason analysis, this may be limited to markets for professional services.

^* J.D./M.B.A. candidate at the University of Iowa College of Law and the Henry B. Tippie School of Management.

² When I was deciding on a topic for a research paper for Professor Nicholas Johnson's Economics of Law Practice Seminar, I wanted to write about an issue that could affect attorneys practicing in almost every area of the law, from criminal law to corporate law, and in every form of practice, from solo practitioners to the largest law firms.  After reading the Supreme Court opinion of California Dental Association v. Federal Trade Commission, at the suggestion of my Antitrust Law professor, Herbert Hovenkamp, I thought of advertising by attorneys, professionals like the dentists in the case, and the state bar associations, non-profit organizations like the Dental Association in the case.

³ BLACK'S LAW DICTIONARY 198 (6th ed. 1990).

⁴ Martha Neil, Learning How to Ad, ABA JOURNAL, October 2001, at 42.

⁵ Neil, supra note 4, at 44.

⁶ GREGORY H. SISKIND & TIMOTHY J. MOSES, THE LAWYER'S GUIDE TO MARKETING ON THE INTERNET 7 (1996).

⁷ SISKIND & MOSES, supra note 6, at 9.

⁸ Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

⁹ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 7, 29 (1995).

¹⁰ California Dental Assn., 119 S. Ct. at 1604.

¹¹ Incidentally, these are attorneys that are the least likely to be concerned with the need to advertise for clients, and the most likely to want to preserve attorneys' fees at their present high levels.

¹² According to this author who has witnessed the commercials in the Los Angeles, San Diego, and Chicago areas.

¹³ In 1997, the FDA announced the withdrawal of the drug Fen-Phen, used for the treatment of obesity, because a study showed the drug caused heart valve defects.

¹⁴ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 29 (1995).

¹⁵ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 29 (1995).

¹⁶ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 29 (1995).

¹⁷ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 29 (1995).

¹⁸ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 29, 30 (1995).

¹⁹ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 30 (1995).

²⁰ Handbills are written or printed notices displayed, handed out, or posted, to inform people of something to be done or some event.  BLACK'S LAW DICTIONARY 716 (6th ed. 1990).

²¹ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 30 (1995).

²² AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 30 (1995).

²³ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 32 (1995).

²⁴ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 32 (1995).

²⁵ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 32 (1995).

²⁶ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 33 (1995).

²⁷ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 33 (1995).

²⁸ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 33 (1995) (citing to JEROLD S. AUERBACH, UNEQUAL JUSTICE (1976)).

²⁹ Canons of Professional Ethics, American Bar Association (1908).

³⁰ Canons of Professional Ethics, American Bar Association (1908).

³¹ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 34 (1995).

³² 15 U.S.C. § 1.

³³ 15 U.S.C. § 2.

³⁴ 15 U.S.C. § 1.

³⁵ E. THOMAS SULLIVAN AND HERBERT HOVENKAMP, ANTITRUST LAW, POLICY AND PROCEDURE 187 (1999).

³⁶ Herbert Hovenkamp, Antitrust Law class discussion, October 26, 2001.

³⁷ Hovenkamp, supra note 36.

³⁸ "Horizontal" refers to firms that are competitors and that sell products or services at the same stage of production, such as packaged cereals.  It is thus distinguished from "vertical" combinations, such as joint arrangements among wheat growers, cereal manufacturers, and grocery store chains that sell the packaged cereal.

³⁹ Id.

⁴⁰ See Am. Ad Mgmt., Inc. v. GTE Corp., 92 F.3d 781, 788 (9th Cir. 1996).

⁴¹ See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).  In that opinion Justice Douglas stated that "[u]nder the Sherman Act a combination formed for the purpose of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se."

⁴² See Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982) (an agreement among doctors and health insurers which fixed the maximum prices that doctors could charge their patients for services rendered was per se illegal.)

⁴³ United States v. Addyston Pipe, 85 F. 271 (6th Cir. 1898), aff'd, 175 U.S. 211 (1899).

⁴⁴ Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918).

⁴⁵ HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND ITS PRACTICE § 5.6b. 251 (1999).

⁴⁶ Federal Trade Commission v. Indiana Federation of Dentists, 476 U.S. 447 (1986).

⁴⁷ See National Collegiate Athletic Assn. v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85, 109-110 (1984).

⁴⁸ California Dental Assn., 119 S. Ct. at 1612.

⁴⁹ Id. at 1607.

⁵⁰ 15 U.S.C. § 45(a)(2).

⁵¹ Id.

⁵² California Dental Assn., 119 S. Ct. at 1611.

⁵³ In re California Dental Assn., 121 F.T.C. 190, 207 (1996).

⁵⁴ California Dental Assn., 119 S. Ct. at 1611.

⁵⁵ Id. at 1612.

⁵⁶ Id. at 1613.

⁵⁷ Id. at 1608.

_⁵⁸ Id. at 1609.

⁵⁹ Id. at 1608.

⁶⁰ California Dental Assn., 119 S. Ct. at 1608.

⁶¹ Id. at 1619 (Justice Breyer quoting In re California Dental Assn., 121 F.T.C. at 301).

⁶² California Dental Assn., 119 S. Ct. at 1613.

⁶³ Id. at 1617.

⁶⁴ Id.

⁶⁵ Id. at 1615-1616.

⁶⁶ Id. at 1610, citing to Federal Trade Commission v. California Dental Association, 128 F3d 720, 728-730 (9th Cir. 1997).

⁶⁷ California Dental Assn., 119 S. Ct. at 1608.

⁶⁸ Id. at 1618.

⁶⁹ Id.  (quoting FTC v. Indiana Federation of Dentists, 476 U.S. 447, 454-455).

⁷⁰ California Dental Assn., 119 S. Ct. at 1618.

⁷¹ Id.

⁷² Id. at 1618-1619.

⁷³ Id.

⁷⁴ Id. at 1619 (quoting In re California Dental Assn., 121 F.T.C. at 301, 308-310).

⁷⁵ California Dental Assn., 119 S. Ct. at 1619.

⁷⁶ Id. at 1620 (citing to 121 F.T.C. at 309-311).

⁷⁷ California Dental Assn., 119 S. Ct. at 1620 (citing to 121 F.T.C. at 249).

⁷⁸ California Dental Assn., 119 S. Ct. at 1619-1620.

⁷⁹ Id. at 1620.

⁸⁰ Id.

⁸¹ Id. at 1621.

⁸² Id.

⁸³ Id. at 1613.

⁸⁴ California Dental Assn., 119 S. Ct. at 1613-1614.

⁸⁵ Id. at 1614.

⁸⁶ Id. at 1618.

⁸⁷ Federal Trade Commission v. Indiana Federation of Dentists, 476 U.S. 447 (1986).

⁸⁸ Id.

⁸⁹ Id. at 450.

⁹⁰ Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959).

⁹¹ Indiana Federation of Dentists, 476 U.S. at 459.

⁹² Id.

⁹³ Goldfarb et ux. v. Virginia State Bar et al., 421 U.S. 773 (1975).

⁹⁴ Id.

⁹⁵ Id. at 775-776.

⁹⁶ Id. at 776.

⁹⁷ Id. at 776-777.

⁹⁸ Id. at 778.

⁹⁹ Goldfarb v. Virginia State Bar, 421 U.S. at 777.

¹⁰⁰ Id.  Parker v. Brown, 317 U.S. 341 (1943).

¹⁰¹ Goldfarb v. Virginia State Bar, 421 U.S. at 792-793.

¹⁰² Id. at 789-790.

¹⁰³ Id. at 788 n.17.  See Sam Stanton, Burden Shifting and Presumptions Under Section One of the Sherman Act After California Dental Ass'n v. FTC, 53 Rutgers L. Rev. 247, 272; See generally Timothy J. Muris, California Dental Association v Federal Trade Commission: The Revenge of Footnote 17, 8 S. Ct. Econ. Rev. 265.

¹⁰⁴ Goldfarb v. Virginia State Bar, 421 U.S. at 788 n.17.

¹⁰⁵ Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982).

¹⁰⁶ Id.

¹⁰⁷ Id. at 339.

¹⁰⁸ Id. at 341.

¹⁰⁹ Id.

¹¹⁰ Albrecht v. Herald, 390 U.S. 145, 152-153 (1968).

¹¹¹ Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982).

¹¹² Id. at 348.

¹¹³ Id.

¹¹⁴ National Society of Professional Engineers v. United States, 435 U.S. 679, 690 (1978) (holding that the inquiry into antitrust violation is confined to the consideration of the impact on competitive conditions).

¹¹⁵ 7 Phillip E. Areeda, Antitrust Law P 1502 (1986).

¹¹⁶ California Dental Assn., 119 S. Ct. at 1613 (emphasis added).

¹¹⁷ The "cellophane fallacy" arose from the popular criticism of the Supreme Court decision in United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377 (1956), in which the Supreme Court measured the cross-elasticity of demand of a product at current market prices and concluded that the defendant lacked market power in the cellophane market without taking into consideration the fact that the firm was already charging monopoly prices.

¹¹⁸ Bates et al. v. State Bar of Arizona, 433 U.S. 350 (1977).

¹¹⁹ Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982).

¹²⁰ Canons of Professional Ethics, American Bar Association (1908).

¹²¹ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 33 (1995) (citing to JEROLD S. AUERBACH, UNEQUAL JUSTICE (1976)).

¹²² AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 33 (1995).

¹²³ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, supra note 122.

¹²⁴ AMERICAN BAR ASSOCIATION COMMISSION ON ADVERTISING, supra note 122.
 
  

END OF FOOTNOTES