December 12, 2019
Practitioners have observed a tension between criminal enforcement of the broadly written terms of the Sherman Antitrust Act of 1890 and the modern Supreme Court’s notions of statutory interpretation and due process. In this article, we analyze a recent certiorari petition filed in Sanchez et al. v. United States, which asks whether the operation of the per se rule in criminal antitrust cases violates the constitutional prohibition against instructing juries that certain facts presumptively establish an element of a crime. If the Court grants certiorari, Sanchez could provide an interesting test of the direction of the current Court’s criminal law jurisprudence and of its willingness to reconsider longstanding precedent.