The Sherman Act and Avoiding Void-for-Vagueness

Abstract

In Johnson v. United States, the Supreme Court reaffirmed the viability of 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 — between categories of analysis as well as within them. 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, judicial attempts 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 congressional or judicial 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