Will New York’s ‘Twenty-First Century Antitrust Act’ Cause A Constitutional Conflict Under Either Federal Preemption or The Dormant Commerce Clause

Bryce Small


This note discusses the evident gap between federal enforcement and the federal antitrust statutes, with the potential solution of individual states passing their own legislation. New York’s proposed legislation, the ‘Twenty-First Century Antitrust Act’ (the “Bill”) changes the standard for federal Sherman Act §2 cases from monopolization and attempted monopolization to ‘abuse of dominance.’ The Bill also proposes changes to premerger notification and penalties. This note discusses the constitutionality of the Bill under both federal preemption and the dormant Commerce Clause focusing on the ‘undue burden on interstate commerce’ test. This note finds the Bill does not violate federal preemption and does not violate the dormant Commerce Clause. Thus, it will likely be held Constitutional.