The End of Criminal Antitrust's per Se Conclusive Presumptions

Abstract

The Supreme Court in the Booker line of cases revolutionized sentencing law by applying a criminal defendant's constitutional right for a jury, not a judge, to decide key sentencing fact issues. Applying this constitutional line of cases in the course of defending a criminal antitrust case led to bringing together four separate silos of law with four revolutionary implications for antitrust: criminal antitrust, Sixth Amendment rights to jury fact finding, constitutional limits on the use of conclusive presumptions in jury instructions, and the constitutional prohibition of federal common law crimes. The four revolutionary implications for antitrust were as stunning for the author as they are sure to be to the antitrust bar, any one of which, when adopted by the courts or the Antitrust Division, will end criminal antitrust's long-accepted practices regarding per se conclusive presumptions.