70 Pages Posted: 16 May 2017
Date Written: May 16, 2017
Recent Supreme Court jurisprudence has reaffirmed the viability of the void-for-vagueness doctrine, including the use of facial challenges. This Article demonstrates that, under prevailing doctrine, the Sherman Act could not survive such a challenge. Although previous high-profile attempts to invalidate this core statute of antitrust law as unconstitutionally vague were unsuccessful, the landscape has changed considerably since then. Longstanding deficiencies in the statutory text in terms of notice and consistency have been exacerbated by a pattern of judicial gloss that tolerates and maintains ambiguity — both categorical and substantive. The Sherman Act’s penalties and enforcement, moreover, have been enhanced and increased, making the cost of good-faith missteps particularly high. Additionally, the Sherman Act’s tension with activities protected by the First Amendment has increased considerably, not only directly, but indirectly through the proliferation of information and communication markets. Finally, the attempt to incorporate a limiting mens rea requirement into the law — a saving grace in other vague statutory schemes — has proved unworkable and incomplete, if not entirely mooted in this context. In light of these trends, the Sherman Act requires some form of alteration to maintain constitutionality moving forward. This Article concludes by briefly exploring such potential solutions, and likely outcomes with respect to antitrust law’s vagueness problem for the years ahead.
Keywords: Antitrust, Vagueness, Void-for-Vagueness, Due Process, Constitutional Law, Sherman Act, Economics, Mens Rea, First Amendment, Criminal Law
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