Professor Havighurst exhaustively explores the antitrust implications of fee, utilization, and quality-oriented peer review. He places such activity first in a theoretical context and then in an historical context that shows why peer review merits particular antitrust attention. He suggests the defending peer review on the same public-interest grounds as are used in defense of the actions of public regulatory bodies is conceptually mistaken. A more appropriate defense, he says, would be that properly conducted peer review-- which eschews coercion, performs an advisory function, and leaves to others the decision whether to act on its advice-- actually enhances competition in the consumer's interest. Contrary to numerous contemporary commentators, he argues that special antitrust exemptions for peer-review bodies are not only unncecessary, but would be counterproductive to the continued evolution of sound antitrust principles. Professor Havighurst addresses the effects of peer review on both its professional sponsors and third parties. He concludes the when it does not adversely affect judicial scrutiny. Such a result would reinforce the notion that antitrust law should protect competition, not competitors.
Clark C. Havighurst, Professional Peer Review and the Antitrust Laws, 36 Case Western Reserve Law Review 1117-1169 (1985)