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70 Colum. L. Rev. 1325 (1970)
Real Estate Boards and Multiple Listing Systems As Restraints of Trade

handle is hein.journals/clr70 and id is 1347 raw text is: COLUMBIA LAW REVIEW Vol. 70 DECEMBER 1970 No. 8 REAL ESTATE BOARDS, AND MULTIPLE LISTING SYSTEMS AS RESTRAINTS OF TRADE ARTHUR D. AUSTIN* INTRODUCTION Associations saturate the contemporary scene with a degree of influence remarkable in a society in which individualism has traditionally occupied a high place in folklore. Despite its pervasiveness, however, associational activity is not so accepted that it is immune from public concern or, more importantly, from public control.' Sustained scrutiny is justified; the mere existence of collective conduct carries with it the potential to effect substantial changes in entrenched societal norms.2 Economic opportunties are shaped to a large extent by associations.3 Various groups, even though not affiliated with major political organizations, have been particularly effective in influencing legislation.4 More- over, associational existence is rarely ephemeral: associations typically are structured in such a way that they exert influence on a permanent basis. Fi- nally, as judge Wyzanski has pointed out, associations are likely to seek to advance their common purposes not merely by debate but often in the long run by overt action.5 Associations in general can and do exert influences that tend to subordi- nate national or state interests to their own parochial goals. In the economic sphere in particular, trade association activity can subject the market to anti- * B.S., University of Virginia, 1958; J.D., Tulane University, 1963; Associate Pro- fessor of Law, Case Western Reserve University, on temporary leave of absence with the Antitrust Division, Department of Justice. This article was written prior to the author's association with the Department of Justice and the views expressed are those of the author and do not necessarily accord with those of any federal agency. 1. See Affeldt & Seney, Group Sanctions and Personal Rights-Professions, Occu- pations and Labor Law, 11 ST. Louis L. REv. 382 (1967); Tobriner & Grodin, The Individual and the Public Set-vice Enterprise in the New Industrial State, 55 CAsL. L. REv. 1247 (1967). 2. See, Developments in the Law-Judicial Control of Actions of Private Asso- ciations, 76 HAxv. L. REv. 983, 989 (1963). 3. For example, trade union exclusion has had a particularly crippling effect on the job aspirations of Negroes. See Hain, Black Workers Versus White Unions: Alter- nate Strategies in the Construction Industry, 16 WAY=E L. Rxv. 37 (1969). 4. See, e.g., Eastern R.R. Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). 5. Wyzanski, Jr., The Open Window and the Open Door, 35 CALu. L. REv. 336, 337 (1947).

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