State licensing boards perform the important government function of regulating professions, but there is a concern that these boards can be captured by interest groups and pursue private, anticompetitive ends. The Supreme Court has attempted to address this concern by allowing antitrust scrutiny of licensing board actions when the board’s actions are either not authorized or not supervised by the state. This allows anticompetitive regulations that do not represent the state’s interests to be enjoined, but it also exposes licensing board members to personal monetary liability. In this way, qualified immunity is a tool for filling the gap between the sovereign immunity of the board and the personal liability of the board members. History supports extending the defense to licensing board members, as some actions of the boards were immunized at common law and there was general acceptance of occupational regulatory regimes as part of government by the time the federal antitrust laws were enacted. Additionally, the policy rationales undergirding qualified immunity support its extension to licensing board members. Professionals serving on licensing boards may have economic incentives to aggressively regulate the market, but these incentives are tempered by professional ethics and the danger of failing to accurately predict Parker immunity. Furthermore, personal liability would likely limit participation of talented candidates on these boards, especially for part-time members who could enjoy the benefits of the board’s actions without exposure to antitrust liability. Applying the defense to licensing board members also does not completely shield their behavior. Qualified immunity applies only when members make reasonable mistakes in exercising their state-empowered discretionary duties, similar to their public counterparts. Thus, there is a strong case to be made for extending qualified immunity to private professionals who are qualified to serve on state licensing boards.
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