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antitrust, Sherman Act, collusion, market failure, health care, physicians, market failure defense, quality of care


This article considers quality-based justifications for antitrust challenges to collaboration among health care professionals. It first examines doctrinal developments resisting such justifications and, with a skeptical eye, analyzes attempts to interject quality of care and worthy motive defenses into antitrust appraisals of horizontal restraints of trade. Next the article assesses the economic basis and the risks and benefits of a market failure defense that would allow some quality-enhancing restraints of trade to escape antitrust challenge. Its principle recommendation is that courts recognize a narrow, market failure defense subject to several limiting principles to cabin its reach. The article concludes by applying its suggested approach to the market failure defense in cases involving horizontal conspiracies in which defendants justified certain actions by invoking their salutary effects on quality of care.