In the case of Federal Trade Commission v. Ticor Title Insurance Company, et al., 1991, the U.S. Supreme Court ruled that title insurance companies were not immune from federal antitrust laws under the state action doctrine just because their rates were filed with a state agency. The court held that for such immunity to apply, states must have clearly articulated and affirmatively expressed a policy allowing anti-competitive conduct and actively supervised any private agreements based on this policy. In this case, several title insurance companies had collectively set prices through rating bureaus in various states where they operated; these rates were then filed with respective state agencies as required by law. However, there was no active supervision by those states over rate-setting practices of these firms which could potentially lead to price-fixing behavior violating federal antitrust laws.

In the dissenting opinion for Federal Trade Commission v. Ticor Title Insurance Company, Justice Scalia disagreed with the majority's decision to apply antitrust scrutiny to state-supervised private conduct. He argued that this approach was inconsistent with previous rulings and would lead to unnecessary federal interference in state affairs. According to him, a more appropriate standard would be whether the states had clearly articulated and affirmatively expressed their intent for such conduct to occur, rather than whether they actively supervised it. This perspective respects states' rights while still allowing federal intervention when necessary. Furthermore, he criticized the majority's use of a "clear articulation" test as being too vague and subjective, potentially leading to arbitrary decisions about what constitutes sufficient state supervision.