¶ 104. (dissenting). Since the beginning of our nation's history, our *735constitutional democracy "has been emphatically termed a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). The profound importance of honoring this principle cannot be overstated. As the Supreme Court of Wisconsin, we are entrusted to preserve the rule of law in all we do, whether in our role of safeguarding against the violation of laws by others or in taking care to never ourselves go outside the boundaries of authority which have been established for the judiciary as for every branch of the government.
¶ 105. The majority has lost sight of this most fundamental principle, shunning the rule of law in favor of giving the force of law to informal threats from municipal officers, according coercive threats legal weight equal to that of democratically approved law. Although the majority acknowledges that to reach such a result, it must apply and extend law in unprecedented ways, it again shrugs off the rule of law, by refusing to be constrained by the pertinent controlling precedent.
¶ 106. The law and issues in this case are not nearly as complicated as the majority paints them. At issue is the agreement of competing taverns to engage in behavior which, it is assumed, constitutes price-fixing in violation of Wisconsin's antitrust laws. Although the tension between city officials and the defendant taverns is contextually relevant to understanding the events leading up to the defendants' actions, the majority grossly overstates the legal significance of such tension. The legal issue before us is the legality of the defendants' conduct, considered in light of any potentially applicable antitrust exemptions, not the legality of municipal officials' conduct or applicability of antitrust laws to them.1
*736¶ 107. The law is quite clear on when a private party is exempt from antitrust laws. First, we must heed the general rule that implied exemptions to antitrust laws are strongly disfavored, and exemptions are to be narrowly construed. See Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 126 (1982). Then, we look at the specific rule articulated in Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982) (Hallie I) governing antitrust exemptions for private parties. Hallie I clearly establishes that the test for whether private parties are exempted from antitrust laws is different from the test for whether municipalities are exempted. Hallie I, 105 Wis. 2d at 538-39. In the case of private parties, exemptions apply only where the private party's conduct is supported by the legislatively stated purpose of a statute conflicting with the antitrust statute and where the private party's conduct is within the express provisions of the conflicting statute. Id. at 538. In this case, the defendants have pointed to no conflicting statute that expressly authorized their anti-competitive conduct. As such, the analysis could end at that point, with the law in this case being straightforward.
¶ 108. However, without any explanation, the majority utterly fails to even begin to apply these well-established rules of law. Rather than apply the correct private party antitrust exemption test, the majority engages in sleight-of-hand tactics which divert the focus away from what the defendants did in this case, focusing instead on what the City of Madison could have done and on the legality of what the majority describes as the City's actions. The troubling implication permeating the majority opinion is that the actual actions of *737the defendants are interchangeable with the threatened actions of certain municipal officials. Under the majority's analysis, it appears that any antitrust exemption for municipalities can be transferred to the defendants even in the absence of formal regulations explicitly allowing the defendants' conduct.
¶ 109. To get to this result, the majority engages in a series of analytical missteps, including: (1) misidentifying Hallie 7 as an "implied repeal" case, ignoring the dozens of supreme court cases in which we have clearly established the implied repeal doctrine as something quite distinct from the antitrust exemption rules applied in Hallie I; (2) applying the wrong Hallie I exemption test, without even acknowledging that Hallie I contains completely separate tests for private and for municipal actors; and (3) acknowledging that although Hallie 7's exemption test for municipalities does not, on its own, create an exemption for the defendants, it could still do so by incorporating elements of yet another inapplicable doctrine — the state action doctrine.
¶ 110. The manner in which the majority justifies applying the state action doctrine is particularly audacious: immediately after acknowledging that this is not a state action case, the majority claims that it is acceptable to treat this as a state action case anyway, simply because "we think it makes sense" to do so. Majority op., ¶ 78. The majority then proceeds to discuss the state action doctrine, arguing that by analogy, the doctrine somehow justifies its conclusion that Hallie 7's test for municipal immunity extends antitrust immunity to the private party defendants after all.
¶ 111. At the end of the majority opinion, one is left wondering how one inapplicable doctrine can suddenly become applicable merely by reference to yet another inapplicable doctrine. One must also wonder *738why such novel and creative readings of the law, even if they made sense, are necessary, when there was a perfectly good, applicable test for private party antitrust immunity all along, the existence of which the majority never even acknowledges. Finally, one is struck by the complete illogic of the majority's apparent conclusion that because taverns are more highly regulated than other industries, there is some state policy of granting them greater, not less, immunity than other industries.2
*739I
¶ 112. The majority acknowledges the critical role antitrust law plays in the protection of competition in our free enterprise system and that the unambiguous legislative policy underlying antitrust statutes is "to make competition the fundamental economic policy of this state." Wis. Stat. § 133.01. See majority op., ¶ 33. However, the majority then fails to abide by the well-established rule that implied exemptions to antitrust laws are disfavored and must be construed narrowly. See Union Labor Life Ins., 458 U.S. at 126 (1981).
¶ 113. Instead, the majority employs a novel approach which creates a confusing hybrid of various doctrines and blurs the distinctions between exemption and repeal; between state and municipality; between state and private actor; between coercion and regulation; between actual past regulations and potential *740future regulations; and, ultimately, between adhering to the rule of law and rationalizing a series of legally indefensible positions by compounding and obfuscating each misapplication with another dizzying misapplication of the law until one seeking to discern a single applicable rule of law in the majority opinion is left to only wonder, upon getting to the end of the opinion, what just happened. Rather than addressing each such distortion made by the majority, I will focus on the two primary misapplications of the law and facts which appear to be the foundation of the majority opinion: the majority's "so-called 'implied repeal' "3 analysis, and its state action doctrine analysis.
A
¶ 114. In its "implied repeal" analysis, the majority describes Hallie I as the "leading case in Wisconsin for the implied repeal doctrine," and a case which allows a general statutory "scheme" or even mere "intense pressure" from a municipality to repeal and override a state antitrust law. Majority op., ¶¶ 40, 43, 89. It is profoundly puzzling how the majority could describe Hallie I in such terms, when the case never once uses the phrase "implied repeal" or describes a statutory scheme or municipal pressure "repealing" or "overriding" a specific antitrust statute.
¶ 115. This is no small semantic quibble: Hallie I does not use the phrase "implied repeal" because it is not an implied repeal case. "Implied repeal" is a highly *741disfavored concept in our state, and is completely distinct from the antitrust exemption tests described in Hallie I.
¶ 116. "Repeal" has a distinct meaning, long recognized by this court as meaning:
"The abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated, (which is called 'express' repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force, (called 'implied' repeal)."
Heider v. City of Wauwatosa, 37 Wis. 2d 466, 478, 155 N.W.2d 17 (1967) (quoting Black's Law Dictionary (4th ed. 1951)(emphasis added)); State v. Dairyland Power Coop., 52 Wis. 2d 45, 51, 187 N.W.2d 878 (1971). Furthermore, nothing in Hallie I contravenes the well-established rule of law that it is the role of the legislature to repeal statutes; where the legislature intends to repeal a law, it should do so expressly. See Seider v. O'Connell, 2000 WI 76, ¶ 80, 236 Wis. 2d 211, 612 N.W.2d 659. Consequently, this court has consistently rejected the application of "implied repeal" in a number of past cases, using it only in the rarest of circumstances, as a last resort, when conflicting statutes cannot be reconciled.
¶ 117. In Ward v. Smith, 166 Wis. 342, 344, 165 N.W. 299 (1917), this court explained that even where a latter statute might appear to be in conflict with an earlier statute, "it must not be supposed that the legislature intended, by the later statute, to repeal the prior one, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject and therefore displace the prior statute." Since that 1917 decision, *742this court has consistently treated the concept of "implied repeal" with great disfavor, refusing to apply it in a variety of contexts unless an irreconcilable conflict between statutes was demonstrated to be so repugnant as to require one of them to be implicitly repealed.
¶ 118. In a 1941 decision, this court explained that "[t]he law does not favor a repeal of an older statute by a later one by mere implication," and that when such a conflict between statutes exists, "it is the duty of the court to construe the acts if possible that both shall be operative." McLoughlin v. Malnar, 237 Wis. 492, 496-97, 297 N.W. 370 (1941). Similarly, in a 1971 decision, this court quoted with approval a Black's Law Dictionary definition of implied repeal as existing where there are " 'provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force,'" and this court concluded that "[t]he 'irreconcilability' referred to in the above quote is not lightly or quickly found by this court. This is because the cardinal principle of statutory construction is to save and not to destroy. Moreover, repeal by implication is not a favored concept in the law." Dairyland Power Coop., 52 Wis. 2d at 51 (citations omitted). This decision was in accord with dozens of other cases in which we have consistently used similar language describing the strong presumption against implied repeal, which can only occur where two utterly repugnant conflicting statutes cannot be reconciled.4
*743¶ 119. Unlike these actual implied repeal cases, it is clear that Hallie I does not speak in such terms or employ an implied repeal framework. Were Hallie I an implied repeal case, it would have mentioned "implied repeal" by name, and it would have applied the traditional presumption against implied repeal, a presumption which was been reaffirmed in case after case deeming implied repeal inapplicable in the absence of *744specific statutes so in conflict with and repugnant to each other that they cannot be reconciled.
¶ 120. Rather, Hallie I speaks in terms of antitrust exemptions, never once describing the antitrust laws at issue in that case as "impliedly repealed" or "overridden." This distinction is critical, and the majority misses it completely by labeling Hallie I as an "implied repeal" case.
¶ 121. On some level the majority appears to recognize that Hallie I is not an implied repeal case. See majority op., ¶¶ 2, 26 (describing the "so-called 'implied repeal doctrine' of Hallie /"); majority op., subheading A n. 17 (seeming to explain that it is merely because the court of appeals and parties describe Hallie I as an "implied repeal" case that "[w]e also adopt this label"). This makes it even all the more puzzling why the majority is determined to designate Hallie I an implied repeal case.
¶ 122. It does not even serve the majority's ends to follow the steps of the parties and lower courts in this case which have mistakenly identified Hallie I as an implied repeal case rather than treating it as the antitrust exemption case it is. Even if the majority could point to a specific statute which conflicts with antitrust laws in such a repugnant and irreconcilable manner as to bring that statute within the parameters of the implied repeal doctrine, it could not reach the result it wants. Not only has the majority failed to identify two irreconcilable statutes which are repugnant to one another, enabling implied repeal, but it is well-established that when such a conflict between statutes addressing the same subject matter does exist, as between a more specific and more general statute, the more specific statute prevails. See Union Cemetery v. City of Milwaukee, 13 Wis. 2d 64, 71, 108 N.W.2d 180 *745(1961); Estate of Miller v. Naze, 261 Wis. 534, 536, 53 N.W.2d 172 (1952). In this case, the antitrust statute, Wis. Stat. § 133.03(1), is more specific in addressing the anticompetitive behavior of the defendants than any of the statutes mentioned by the defendants, which describe general police powers or address alcohol in various ways but not in the specific context at issue here. See infra, ¶ 27.
¶ 123. Regardless of the majority's intent in labeling this an "implied repeal" case, one thing seems clear: the majority's failure to read our state's extensive implied repeal precedent as requiring that statutes be directly and irreconcilably in conflict before the implied repeal doctrine applies. The majority's transformation of the phrase "implied repeal" into something more vague, amorphous, and undefined gives me pause. It makes me wonder if I could just end my dissent with a similarly conclusory statement that because my description of the law conflicts with the majority's, then my later statement of the law "impliedly repeals" the majority's earlier statement, with the majority opinion effectively overridden the moment tension is created by my dissent. After all, under the majority's approach, it appears that there need not be two statutes directly and irreconcilably in conflict with each other for "implied repeal" to occur, a century of precedent to the contrary notwithstanding.
¶ 124. But surely this is not what the majority means. And so I proceed with the remainder of my dissent.
B
¶ 125. Describing Hallie I as an implied repeal case rather than recognizing its true nature as an antitrust exemption case is not the majority's only *746mischaracterization of Hallie I. The majority's creative reading of Hallie I, even more critically, fails to acknowledge the explicit and emphatic distinction Hallie I makes between private parties and municipalities.
¶ 126. While the majority seems to conclude that Hallie I sets forth rules which are as applicable to private parties as to municipalities, Hallie I actually does the opposite. This court was careful in Hallie I to expressly differentiate between the "legislative intent" test which applies to municipalities and the more stringent "legislative intent plus express authorization" test which applies to private parties.5 The pertinent passage of Hallie I, which the majority only selectively, and inaccurately, quotes, clearly sets forth the difference between the two tests:
This court has dealt with conflicts between the state antitrust law and other state statutes in Reese v. Associated Hospital Service, 45 Wis. 2d 526, 173 N.W.2d 661 (1970), and in Grams v. Boss, 97 Wis. 2d 332, 294 N.W.2d 473 (1980). These cases established the rule that an entity cannot be exempted from the state antitrust statute unless the conduct of the entity is within the express provisions of the conflicting statute and then only if its conduct is in furtherance of the conflicting statute's legislatively stated purpose. Reese at 532-33, and Grams at 342. We reiterate this rule for private entities, but we believe this rule may be overly *747restrictive if applied to municipalities. When dealing with actions by municipalities, we hold that the test as to the applicability of the state antitrust law is whether the legislature intended to allow municipalities to undertake such actions.
Hallie I, 105 Wis. 2d at 538-39 (emphasis added). The unambiguous language of this passage clearly explains that different rules apply depending on whether the anticompetitive conduct is by private entities or by municipalities.
¶ 127. However, this distinction is lost on the majority. The majority inexplicably cites only the end of the quote describing the municipal exemption ("legislative intent") test, which the majority then misrepresents as the applicable exemption test in this case. See majority op., ¶¶ 43-48. In so doing, the majority ignores the clear language of the same Hallie I passage which explicitly describes a separate and more stringent test for private actors (i.e., a "legislative intent plus express authorization" test exempting only a private party which establishes that its conduct was "within the express provisions of [a] conflicting statute and then only if its conduct is in furtherance of the conflicting statute's legislatively stated purpose." Hallie I, 105 Wis. 2d at 538 (emphasis added)). It is hard to fathom how the majority could have missed the sentences that immediately precede the one it selectively quoted, not noticing that this passage of Hallie I explicitly describes the private party antitrust exemption test as distinct from and more stringent than the municipal exemption test.
¶ 128. While never acknowledging that it quoted the wrong Hallie I test or that a separate test for private parties even exists, the majority does concede in a later passage that the issue in this case is not about *748whether the City is granted antitrust immunity, but is about whether the defendants, as private parties, are exempt from antitrust immunity under Hallie I. Majority op., ¶¶ 70-71. However, rather than apply the correct exemption test for private parties, the majority instead appears to create a new compulsion-based test, seemingly concluding that under Hallie I, an exemption could apply if private actors demonstrate that their anticompetitive conduct was in direct response to municipal "pressure bordering on compulsion." Majority op., ¶ 71. The majority never explains (1) how its various articulations of the Hallie I test relate to each other; (2) why any of these tests should be considered an "implied repeal" test; or (3) why it does not even mention the test Hallie I sets forth for evaluating whether private parties, as opposed to municipalities, are exempt from antitrust laws.
C
¶ 129. Because the majority never applied the correct private party antitrust exemption test in the first place, its ensuing analysis which is based on the inapplicable municipal antitrust exemption test is also necessarily wrong as a result. However, even if the majority had been correct in applying the municipal instead of the private party exemption test under Hallie I, its application of Hallie I is flawed in additional respects.
¶ 130. First, the majority has failed to identify the requisite conflict between statutes required under either Hallie I or the actual implied repeal doctrine. For all its general references to statutes allowing municipalities to enact alcohol regulations and to protect public health and safety, the majority has not identified a single statute which is in conflict with state antitrust *749prohibitions of price-fixing by private parties such as the defendants, or which contains a legislative purpose specifically thwarted by such antitrust restrictions on price-fixing by private businesses. The majority frequently invokes ch. 125 and the statutes contained therein, but there is no direct conflict between any statute within ch. 125 and Wis. Stat. § 133.03 price-fixing prohibitions that would bring this case within the reach of Hallie I. Although various provisions of ch. 125 relate to alcohol, none address voluntary agreements by taverns to set prices in an anticompetitive manner or otherwise conflict with the text of § 133.03 prohibiting individual businesses from contracting, combining or conspiring in restraint of trade or attempting to monopolize any part of trade or commerce. The one statute highlighted by the defendants at oral argument and emphasized as well by the majority, Wis. Stat. § 125.10(1), only serves to underscore the fact that regulation of alcohol by the City requires formalization through statutorily established democratic procedures.6 None of the other provisions of ch. 125 cited by the defendants contains any language authorizing the violation of § 133.03 through creation of unlawful monopolies or "contract, combination ... or conspiracy" in restraint of trade. To the contrary, each cited provision only serves to illustrate this state's general policy of *750favoring comparatively greater regulation of taverns, not greater immunity from statutes and other legal regulations.
¶ 131. Second, the majority's description of "municipal action bordering on compulsion" has no bearing on a proper antitrust exemption analysis. After conceding that the issue in this case is the immunity of the defendants, not the City, the majority immediately backpedals from this concession, adding that "[i]n reality, we must determine whether private parties are eligible for antitrust immunity when they act in concert, [7] in an anticompetitive manner, in direct response to pressure bordering on compulsion from a municipality with the power to condition or non-renew their licenses." Majority op., ¶ 71. The majority's description of the "reality" of this case in such terms not only deviates from the applicable Hallie I test but also requires the acceptance of a debatable premise: that there was direct pressure from a municipality in this case which bordered on compulsion.
¶ 132. Even the tavern owners' press release emphasizes that their decision to end drink specials on weekends was voluntary; the press release bolded and underlined the word "voluntarily" in the below passage:
*751We are a little puzzled about the mixed messages being sent by the A.L.R.C. and the city council. We all believe in the free enterprise system, but the A.L.R.C. continues to saturate our downtown area by approving more new licensed establishments, yet now they want us to eliminate the drink specials which is a way of competing with each other and with all the new establishments in order for us to stay in business.
With these facts in mind, and without acknowledging that drink specials are indeed causing this problem, we as a group, have agreed that we will voluntarily and immediately end all drink specials on Friday and Saturday nights after 8 p.m. in our establishments [and advertising of such specials].
As concerned owners and businessmen, we want to be part of the solution, not part of the problem.
In trying to build bridges and mend fences with Chancellor Wiley and City officials, we feel today we are taking the first solid step toward trying to end a problem that we all agree exists.
We do not feel that pending legislation before the A.L.R.C. to ban all drink specials at all bars and restaurants in the City of Madison is necessary.
We do not need more legislation or controls that will adversely affect our businesses.
(Emphasis in original.)
¶ 133. Not only does this undisputed and clear language from the press release indicate that the taverns' decision to limit their drink specials was volun*752tary, the pressure it describes leading up to their decision is not described in terms of either borderline compulsion or actual regulation. Rather, the press release describes receiving mixed messages, not coercion, from two different government bodies. The press release also describes the taverns as wanting to be a part of the solution, and to end a problem they agreed existed. Further, the press release makes it clear that any regulatory pressure felt was merely the pressure of potential legislation being considered that would ban all drink specials, not any formal regulation that had already been democratically approved and promulgated.
¶ 134. Even more striking is the warning in the Tavern League's simultaneously issued press release that "while an attempt will be made to eliminate weekend drink specials, we are all independent businesses and economic pressures may prevent some from participating in this experiment" (emphasis added). This passage of the press release reveals that the taverns felt free to choose whether or not to participate in the agreement to limit drink specials, and that the more compelling pressure some of the taverns felt was the economic pressure not to engage in the drink specials limitations. As such, any pressure from the City was neither binding on all the taverns, nor, by the taverns' own undisputed words, did it necessarily outweigh economic pressures on the taverns to continue with their drink specials.
¶ 135. To support its own description of "borderline compulsion" put on the defendants, the majority relies extensively on the circuit court's description of enormous pressure placed on defendants by certain city and university officials. However, we owe no deference to the court's legal conclusion that such pressure was regulatory in nature for purposes of creating an antitrust exemption. Informal coercion by politicians does *753not have the same force of law as democratically promulgated regulations. By concluding otherwise, the circuit court and the majority effectively condone and add legitimacy to coercive tactics by individual municipal officials by elevating such tactics to the level of binding democratically enacted statutes, such as those creating antitrust exemptions.8
¶ 136. As an alternative means of characterizing the defendants' conduct as mere compliance with binding regulatory action, the majority mischaracterizes and exaggerates the role of the "Luther's Blues conditions" in this case, inappropriately describing them as a "regulation... at the heart of this dispute." Majority op., ¶ 48. This description is extremely misleading. As a preliminary matter, a regulation, whether past, present, or future, does not by itself create an antitrust exemption absent the elements of Hallie Ts private party antitrust exemption test being met. Additionally, the threatened drink specials ban which was the admitted motivating force behind the defendants' voluntary agreement is distinct from the previous "Luther's Blues conditions," which predated the key events in this case and did not even apply to the defendant-taverns which were existing or non-renewing bars. In contrast, the regulation that City officials threatened to apply to the defendant-taverns in this case was never democratically approved by vote or formally promulgated into an *754actual regulation as defined by Wis. Stat. § 125.02(17) (defining "regulation" as "any rule or ordinance adopted by a municipal governing body").
¶ 137. To allow coercive tactics of individual aldermen, even coupled with the threat of potential future regulation, to rise to the level of democratically approved regulatory action is to strip from this country the fundamental protections that distinguish us from a tyrannical system of government. Ours is a country of laws, not of men. It is anathema to our constitutional democracy to allow coercive behavior by individuals claiming to be acting on behalf of a city, state, or even higher, to dictate what the law is without going through a democratic legislative process to formally enact such laws. If the rule of law means anything, mere threats, no matter how enormous the pressure that accompanies them, cannot be given equal legal weight to democratically promulgated regulations.
¶ 138. Finally, even if the City had enacted a regulation that was expressly authorized by statute (satisfying Hallie Ts express authorization requirement) and that not only limited drink specials but also authorized the defendants to engage in price-fixing schemes among themselves in a manner that conflicted with antitrust laws, it is not a given that such regulation would have effectively exempted the defendants from the antitrust laws.
¶ 139. In an opinion authored by Judge Easter-brook, the Seventh Circuit Court of Appeals has explained that even the existence of conflicting statutes does not, by itself, automatically result in exemption. Addressing a scenario analogous to that in this case, the Seventh Circuit held that agreements among business rivals to fix prices are not exempt from antitrust prosecution by virtue of special interest laws enacted to *755allow such price fixing. Chicago Prof'l Sports Ltd. P'ship v. Nat'l Basketball Ass'n, 961 F.2d 667, 671-72 (7th Cir. 1992). The court explained that " [recognition that special interest legislation enshrines results rather than principles is why courts read exceptions to the antitrust laws narrowly, with beady eyes and green eyeshades." Id. (citing Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231 (1979); Nat'l Broiler Mktg. Ass'n v. United States, 436 U.S. 816, 827-29 (1978)). Consequently, even if there had been such legislation or formal regulation authorizing the defendants' conduct in this case, it would be debatable whether they were automatically entitled to an antitrust exemption.
¶ 140. Rejecting the "beady eyes and green eye-shades" approach as unflattering to its objectives, however, the majority refuses to follow the well-established rule of law that exemptions to antitrust laws must be construed narrowly and given out sparsely. The majority neither applies this correct standard of review, nor applies the correct test established by Hallie I for private party antitrust immunity.
D
¶ 141. The next inexplicable move the majority makes is to merge its Hallie I analysis with an application of yet another doctrine which does not generally apply to private actors: the "state action" doctrine. Majority op., ¶¶ 74-89. While conceding that the conceptual underpinnings of the federal "state action" doctrine are distinct from what it designates as the "implied repeal" doctrine, the majority nonetheless concludes that state action cases are "instructive and persuasive." Id., ¶ 74 & n. 23.
*756¶ 142. In an even more astounding concession, the majority admits, just before applying the state action doctrine, that this is not "technically" a state or municipal action case. Majority op., ¶ 78. So how does the majority justify treating private actors the same as government actors for purposes of granting them some kind of "state action" immunity which morphs into a Hallie I exemption? It simply follows the concession that this is not a state action case with the conclusory statement, "But we think it makes sense to apply the [state action] analysis ... to determine whether the City's immunity extends to the defendants." Majority op., ¶ 78 (emphasis added).
¶ 143. We think it makes sense? We think it makes sense? Surely this cannot stand as justifiable grounds or authority for extending a legal doctrine in directions never before taken by this court, in lieu of applying the applicable test explicitly affirmed in Hallie I for determining the existence of private actor antitrust immunity.
¶ 144. Even in Hallie I, this court realized that it does not make sense to apply the state action doctrine in cases not involving a conflict between two different sovereigns — the federal government and the sovereign states — which implicates the limits on federal power under the United States Constitution. Hallie I, 105 Wis. 2d at 537-38. In Hallie I, this court concluded that state action principles were not present in that case involving tensions between states and municipalities because "[t]he relationship between the federal government and the states is not parallel to the relationship between the state government and the cities. Cities are creatures of the state, derive their power from it, and are not recognized as independent sovereigns." Id.
*757¶ 145. It makes even less sense to apply the state action doctrine in this case. Regardless of whether one accepts the majority's descriptions of the tension in this case as between the defendants and the City or as between the City and some broad statutory scheme, neither such tension brings this case within the purview of the state action doctrine as explained in Hallie I, i.e., a conflict between two sovereigns. Id.
¶ 146. The purpose of the state action test is to determine "whether state regulation of private parties is shielded from the federal antitrust laws." Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 57 (1985)(emphasis added). The majority acknowledges that the first prong of the state action test, as described by Southern Motor Carriers, 471 U.S. at 57, requires those seeking to extend state action antitrust immunity to private parties to show that the challenged anticompetitive conduct is conduct which is "clearly articulated and affirmatively expressed as state policy." See majority op., ¶ 77. However, the majority then fails to explain how the defendants' voluntary agreement to limit drink specials reflects "clearly articulated and affirmatively expressed" state policy. The only argument the majority makes is that "[w]ith regard to the 'clear articulation' test, state law empowers municipalities to 'prescribe additional regulations for the sale of alcohol beverages, not in conflict with [Chapter 125]" and that "[t]he imposition of 'Luther's Blues conditions' on eight licensees is an exercise of this power." Majority op., ¶ 79.
¶ 147. This argument, like the others, makes no sense. The cases cited by the majority unambiguously provide that the state action doctrine is inapplicable absent clearly articulated and affirmatively expressed state policy allowing the restraint at issue. In this case, *758the challenged restraint is the defendants' conduct, which consisted of privately owned taverns voluntarily entering into a price-fixing agreement with each other. The majority has completely failed to point to a single statute which clearly articulates and affirmatively expresses state policy allowing private taverns to enter into price-fixing agreements with each other. The majority points only to the City's statutory authority to enact certain regulations, begging the question of whether the defendants have the right to engage in illegal price-fixing without regulation or statute expressly authorizing them to do so. By pointing to the "Luther's Blues conditions," which are not at issue in this case and did not require the steps the defendants took in this case, the majority once again attempts to reach a desired result through obfuscation, rather than accomplish the impossible: find a regulation, statute, or any other law which expressly authorizes private taverns to engage in price-fixing.9
¶ 148. In the end, it does not make sense to equate private tavern owners with state actors or with the municipalities that have the authority to regulate the taverns. It is neither good law nor good public policy to conclude that because taverns are more heavily regulated than other businesses, they should therefore be more exempt from the law.
II
¶ 149. Rather than apply well-established rules of law applicable to this case, the majority plays a creative game of hide-the-ball which attempts to fuse principles *759of various doctrines, none of which is directly applicable to this case, to concoct a hybrid under which all the doctrines combined magically create immunity for private parties after all. As creative as it is, the majority opinion is simply unsupported by legal authority.
¶ 150. While the majority does not have the law on its side, it does have some sympathetic policy concerns. Although preserving a competitive free market is central to our capitalist society, the policy concerns related to alcohol abuse raised by the majority are also serious. However, "[i]t is nevertheless well settled that good motives will not validate an otherwise anticom-petitive practice." NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 101 n. 23 (1984).
¶ 151. Remedying such policy problems is a legislative, not judicial function. To that end, there is already, as the majority has pointed out, an abundance of legislation regulating alcohol, and the City certainly has the authority to enact further regulatory reform through ordinances and regulations enacted through the correct democratically established processes. Furthermore, our legislature has already enacted laws prohibiting taverns from serving alcohol to intoxicated persons and to underage university students. See, e.g., Wis. Stat. § 125.07.
¶ 152. I applaud the defendants for wanting to take further affirmative steps to reduce excessive alcohol consumption. However, instead of engaging in price-fixing without express statutory authorization, a better way for taverns to address alcohol abuse problems would be to work toward full compliance with laws already on the books prohibiting taverns from selling alcohol to intoxicated persons and to underage drinkers. If limitations on drink specials are a necessary step in reducing binge drinking, the parties do not appear to *760dispute that the City has the ability to formally promulgate a regulation limiting drink specials, and indeed has done so in the past, as evidenced by the majority's frequent references to the "Luther's Blues conditions." If the City could set such conditions before, it can do so again. Nor do antitrust laws prevent any individual tavern from choosing to end its own drink specials on its own terms, so long as such a decision is not an agreement made collaboratively with other taverns in violation of price-fixing laws. In sum, if the overriding policy concern in this case is truly the reduction of excessive alcohol consumption, solving that problem does not require the defendants to engage in collaborative price-fixing in violation of antitrust laws.
¶ 153. For all the doctrines and cases mentioned by the majority, and for all its concessions that no single doctrine, standing on its own, creates an antitrust exemption for the petitioners, it remains unclear how, whether, or to what extent the majority means to change the course of antitrust law in Wisconsin. This is the first time this court has embraced a result allowing private parties to engage in antitrust violations without express statutory authorization.
¶ 154. This court has a solemn obligation to adhere to precedent and to the rule of law. We must be cautious before creating new doctrines, particularly in the face of contrary precedent and authority. To engage in such a broad extension and unprecedented deviation from basic state action doctrine, antitrust exemption, and implied repeal principles, misapplying elements of each of these doctrines to create a new hybrid form of antitrust immunity for private actors, requires a bit more than merely shrugging off the rule of law with the empty statement that we just "think it makes sense."
*761¶ 155. What does make sense is the body of law preceding this decision which in no unclear terms sets forth different standards for the treatment of private and government actors under antitrust laws. What does make sense is that the state action exemption applies to state actors, not private actors. WTiat does makes sense is the language in the very case relied upon throughout the majority opinion, Hallie I, which clearly states the test for extending antitrust immunity to private actors, a test that the majority never even attempts to apply. Rather, the majority rejects applicable precedent and long-standing principles as mere technicalities that get in the way of its result, proclaiming that even if a case does not "technically" involve municipal action, for example, that should not stop an opinion from being framed nearly entirely in terms of such municipal action. See majority op., ¶ 78.
¶ 156. The majority ultimately holds that because of its state action analysis, Hallie I should be extended to grant private parties antitrust immunity vis-á-vis a municipality exemption. This final conclusion blurs the clear distinction this court was careful to make in Hallie I between the two types of exemptions, as well as blurring the distinction between the state action doctrine and the narrow private party exemption test set forth in Hallie I. Most troubling is the majority's final swipe, adding insult to the injury it inflicts on the rule of law, as it follows its holding with the bold proclamation, "[t]o conclude otherwise would enshrine theory over practical reality." Majority op., ¶ 89. This rejection of the rule of law as mere technicality and theory does a grave injustice to our legal system.
¶ 157. While limiting binge drinking may be a sympathetic policy goal, the most critical policy goal worthy of this court's affirmative protection — the rule *762of law itself — should never be sacrificed for the expedient achievement of any particular policy-driven end. Consequently, the majority decision should not be read as itself "repealing" or overruling the long-standing precedents which describe the antitrust laws in quite different terms. Nor does the majority overrule the express language of Hallie I precluding the extension of antitrust exemptions to a private party absent the existence of both a statute expressly authorizing anti-competitive conduct and a legislatively stated purpose also clearly supporting such anticompetitive conduct.
¶ 158. For all of the above reasons, I respectfully dissent.
Nobody in this case argues that the City or any municipal actors violated any antitrust law, despite the implication to the *736contrary created by the majority opinion's primary focus on the applicability of antitrust laws to municipalities.
Another doctrine which the majority incorrectly describes in passing is the Noerr-Pennington doctrine. The majority seems to suggest, without so holding or deciding the issue, that this doctrine might provide another possible source of immunity for the defendants by virtue of their actions being "wholly defensive," despite those actions going beyond mere petitioning the government. See majority op., ¶¶ 90-100. It seems that the majority fails to grasp that the Noerr-Pennington doctrine does not extend beyond petitioning, i.e., allowing individuals to lobby legislators for the passage of anticompetitive legislation. See United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669 (1965); E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 138, 140 (1961); Am. Med. Transp. v. Curtis-Universal, Inc., 154 Wis. 2d 135, 154-55, 452 N.W.2d 575 (1990)(AMT). The doctrine has never been applied to allow individuals to actually participate in anticompetitive conduct beyond the mere exercise of free speech rights in advocating for legislation; as this court explained in AMT:
The court of appeals correctly stated the applicable law when it said that the "Noerr-Pennington doctrine . . .protects advocacy and not participation."
Airport Car Rental Antitrust Litigation, 521 F. Supp. 568, 584 (N.D. Cal. 1981), aff'd 693 F.2d 84 (9th Cir. 1982), capsulized the limits of the Noerr-Pennington doctrine when it stated:
Private parties attempting to influence public officials to engage in commercial activities which may later be found to violate the antitrust law do not thereby become *739themselves liable. For liability to be imposed upon them, they must be participants in the scheme.
Thus, it is clear that, if a scheme or enterprise that has been merely petitioned or lobbied for by private persons is found to violate antitrust laws, liability will not be imposed on those private persons for that conduct alone. See, E Areeda, H. Hovenkamp, Antitrust Law, para. 201, p. 21 (Supp. 1989).
There have been no cases brought to our attention or which we have discovered in the course of this courts research where a private party who has participated in an anticompetitive scheme is exonerated by Noerr-Pennington. This absence of authority fully accords with the basic premise of Noerr-Pennington — to protect the citizens' right to free speech and to petition government. It goes no further than that.
AMT, 154 Wis. 2d at 154-55 (emphasis added). The majority quotes AMT out of context to arrive at a description of Noerr-Pennington which utterly contradicts the above AMT passage. Compare majority op., ¶¶ 93-99 with above quotation from AMT, 154 Wis. 2d at 154-55.
See majority op., ¶ 2 ("The defendants contend that their conduct is immune from Wisconsin antitrust law under: (1) the so-called 'implied repeal doctrine' articulated in Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982) (Hallie I). ..").
See, e.g., State v. Black, 188 Wis. 2d 639, 645, 526 N.W.2d 132 (1994) (holding that passage of statute imposing restrictions on abortion did not impliedly repeal feticide statute, explaining "[nlothing persuades us that the legislature intended to impliedly repeal sec. 940.04(2)(a) when it enacted sec. 940.15. Implied repeal of statutes by later enactments is not favored in statutory construction."); State v. Zawistowski, 95 Wis. 2d 250, *743264, 290 N.W.2d 303 (1980)("Implied repeal of statutes by later enactments is not favored in statutory construction. All statutes passed and retained by the legislature should be held valid unless the earlier statute is completely repugnant to the later enactment."); Milwaukee Fed'n of Teachers, Local No. 252 v. WERC, 83 Wis. 2d 588, 599, 266 N.W.2d 314 (1978)(" '[A]s to changing statutory law, there is a presumption against the implied repeal or amendment of any existing statutory provision.' "); Jicha v. Karns, 39 Wis. 2d 676, 680, 159 N.W.2d 691 (1968)(holding that the argument that a later statute super-ceded an earlier statute "would prevail if the two statutes were in conflict and could not be reconciled. However, repeal or amendment by implication is not favored if they can be reconciled."); Burris v. Karns, 14 Wis. 2d 431, 436, 111 N.W.2d 509 (1961)("[I]n Wisconsin the doctrine of implied repeal is not favored. In Milwaukee County v. Milwaukee Western Fuel Co., 204 Wis. 107, 112, 235 N.W. 545, 547 (1931), we held that 'an earlier act will be considered to remain in force unless it is so manifestly inconsistent and repugnant to the later act that they cannot reasonably stand together.1"); State ex rel. Peterson v. County Court of Clark County, 13 Wis. 2d 37, 40-41, 108 N.W.2d 146 (1961)("[I]t is fundamental that implied repeals are not favored and an earlier act will be considered to remain in force if the same may be construed in harmony with the later one. This principle is well established."); Union Cemetery v. City of Milwaukee, 13 Wis. 2d 64, 71, 108 N.W.2d 180 (1961)("Repeals by implication are not favored in the law. The earlier act will be considered to remain in force unless it is so manifestly inconsistent and repugnant to the later act that they cannot reasonably stand together.").
It is worth emphasizing that were Hallie I actually an "implied repeal" case, a completely different legislative intent test would apply. In implied repeal cases, the party seeking to have a statute repealed must show that, in enacting a conflicting statute, the legislature intended to have that statute repealed. Kienbaum v. Haberny, 273 Wis. 413, 420, 78 N.W.2d 888 (1956). Such a hurdle could clearly not be passed in this case, as the majority cites no statute indicating any legislative intent to repeal Wisconsin's antitrust laws in whole or in part.
Wisconsin Stat. § 125.10(1) provides:
Authorization. Any municipality may enact regulations incorporating any part of this chapter and may prescribe additional regulations for the sale of alcohol beverages, not in conflict with this chapter. The municipality may prescribe forfeitures or license suspension or revocation for violations of any such regulations. Regulations providing forfeitures or license suspension or revocation must be adopted by ordinance.
(Emphasis added.)
Although the majority probably intends to describe only the defendants as acting in concert with each other in this passage, elsewhere the majority comes close to describing a similar type of collusion between the defendants and the City for the purpose of equating the defendants' conduct with municipal action. It is worth noting on that point that "[i]n analogous contexts, the Court has held that an exempt entity forfeits antitrust exemption by acting in concert with nonexempt parties." Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231 (1979).
The majority opinion echoes the tone of the defendants' argument that "[t]he only wrinkle presented by this case is the City did not formalize its regulation in the form of an ordinance." In response, Eichenseer issued the following strong rebuke: "Whether or not a regulation is to be found in the written law may be considered a mere 'wrinkle' in certain totalitarian nations, but not in the United States." I concur with this statement.
Having explained why the majority's failure to establish the requisite elements of the first prong of the state action test renders the test inapplicable, I will not address the "active state supervision" prong of the test.