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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-72
- --------
- FEDERAL TRADE COMMISSION, PETITIONER v.
- TICOR TITLE INSURANCE COMPANY et al.
- on writ of certiorari to the united states court of
- appeals for the third circuit
- [June 12, 1992]
-
- Justice Scalia, concurring.
- The Court's standard is in my view faithful to what our
- cases have said about -active supervision.- On the other
- hand, I think The Chief Justice and Justice O'Connor
- are correct that this standard will be a fertile source of
- uncertainty and (hence) litigation, and will produce total
- abandonment 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 supervi-
- sion- doctrine, which has not been challenged here; and
- because I am skeptical about the Parker v. Brown exemp-
- tion for state-programmed private collusion in the first
- place.
-