Courts, Competence, and Competition: Brewing Tensions Between Administrative, Antitrust, and Securities Law

Many securities law doctrines presume that the Securities & Exchange Commission (SEC) holds a comparative advantage over non-expert judges and juries when distinguishing legitimate securities activity from illegitimate securities fraud. But recent Supreme Court opinions on administrative delegation, deference, and structure reveal an emerging skepticism toward agencies’ ability to engage in neutral, apolitical decision-making. These opinions also reflect the Supreme Court’s renewed commitment to rigid separation-of-powers protections between the executive and legislative branches. As a result, doctrines or arguments rooted in regulators’ comparative expertise carry less persuasive weight than in times past.

This Article examines an area of securities law—implied antitrust immunity—premised on comparative agency expertise. Juxtaposing recent Supreme Court decisions in Kisor v. Wilkie and West Virginia v. EPA with even more recent calls to expand implied immunity beyond antitrust claims, the Article argues that courts are likely to restrict such immunity going forward. With that said, the Article shows how this approach leaves lower court judges with equally challenging interpretive questions surrounding the scope of conduct subject to private anti-trust and securities claims. The Article also argues that the Supreme Court’s analytical shift risks undercutting the effectiveness of securities law as a stabilizing legal framework for existing and emerging financial activities. To address these concerns, the Article proposes a nuanced evaluative approach to antitrust immunity questions focusing on whether the SEC (or any other market regulator) actually—and effectively—brings its comparative expertise to bear when taking regulatory action.