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1992-06-11
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SUPREME COURT OF THE UNITED STATES
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No. 91-72
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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.