Bob Connolly [email protected]
I have been very interested in constitutional challenges to the per se rule in criminal Section 1 Sherman Act prosecutions. I have reluctantly come to the conclusion that the per se rule is unconstitutional. I say “reluctantly” because I do believe that cartels are “the supreme evil of antitrust” and I offer some fixes to still maintain a robust cartel enforcement program.
I have two versions of the article. I posted the full version on the SSRN website (here) and very much appreciate any comments for those that are interested. I have a shorter version on Law 360 (here) but this is behind a firewall. If you don’t have Law 360, you can email me and I’ll send a copy.
This is the opening paragraph of the article on Law 360:
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The per se rule for horizontal price-fixing and bid-rigging has been entrenched in Supreme Court jurisprudence since at least United States v. Socony-Vacuum Oil Co., in 1940. That may change in the near future.
Challenges in lower courts to the per se rule have become more frequent. While these challenges have been repelled by Supreme Court precedent, the current Supreme Court may be receptive to revisiting the per se rule.
Justices Sonia Sotomayor and Neil Gorsuch, while representing so-called different wings of the Supreme Court, have taken an interest in cases where the defendant claims he has been denied the right to a jury trial. Justice Gorsuch’s bent as a “textualist” will also find support from other justices to hold that the Supreme Court improperly created the per se rule. While members of the Supreme Court will take different approaches, the per se jury instruction in criminal Sherman Act trials will fall.
In a per se case, the court, not the jury, decides whether the alleged agreement violated the Sherman Act. The jury only decides whether the charged agreement existed and whether the defendant joined the agreement. Justices Gorsuch and Sotomayor will lead a majority to hold that: (1) the per se rule is a substantive rule of law, which only Congress, not the Supreme Court can create; and (2) this substantive per se rule improperly takes away the defendant’s Sixth Amendment right to have the jury be the fact finder regarding whether the agreement charged in a Sherman Act indictment actually was a restraint of trade.
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Thanks for reading Bob Connolly [email protected]
The End Is Near for the Per Se Rule in Criminal Antitrust Cases:
The End Is Near for the Per Se Rule in Criminal Antitrust Cases: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3356731