The End is Near For the Per Se Rule in Criminal Sherman Act Cases

Abstract

What do “progressive” Supreme Court Justice Sonia Sotomayor and “textualist” Justice Neil Gorsuch have in common? To quote one commentator, “they are on a mission to restore criminal defendants’ constitutional rights:”

In November, the two justices teamed up to champion Sixth Amendment safeguards against notoriously flawed forensic analysis. Weeks later, they came together to attack policing for profit, endorsing Eighth Amendment protections against civil forfeiture. And on Monday, the two joined forces once again to stick up for the right to a trial by jury when the government seeks to impose crippling fines in the form of criminal restitution.

The per se jury instruction in criminal Sherman Act trials will also fall. In a per se case, the court is the initial fact-finder, deciding whether the agreement violated the Sherman Act. If the court determines the indictment alleges a per se violation the jury then only decides whether the charged agreement existed and whether the defendant joined the agreement. Justices Gorsuch and Sotomayor will extend their “right to a jury” advocacy, and gather 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.

Keywords: per se rule; unconstitutional