intended § 1 to prohibit only “unreasonable” restraints of trade.
Congress delegated to the courts the task of distinguishing between criminal and
civil violations of the Sherman Act,
and extensive federal common law interprets
both classes of violations. Courts consistently refer to the breadth of the Sherman
Act and note that Congress expected courts to shape the broad language of § 1 by
creating a common law of antitrust.
The Sherman Act includes a number of com-
mon law terms to assist courts in determining whether it has been violated.
commentators, however, have questioned the use of “unelaborated common law
words” in the Sherman Act.
The debate centers on whether Congress intended
to define special classes of prohibited conduct or intended courts to interpret the
statute using “certain customary techniques of judicial reasoning, [for example, to]
consider the reasoning and results of other common law courts, and develop,
refine, and innovate in the dynamic common law tradition.”
judication facilitates the common law approach to antitrust. Just as common
law evolves over time, the Sherman Act evolves to meet current economic
This article focuses on criminal antitrust law.
Section II outlines the four ele-
ments of a criminal antitrust violation under § 1 of the Sherman Act. Section III
4. See, e.g.
, Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877
, 885 (2007) (“[T]he Court has
repeated time and again that § 1 ‘outlaw[s] only unreasonable restraints.’” (quoting State Oil Co. v. Khan, 522
U.S. 3, 10 (1997))); Texaco v. Dagher, 547 U.S. 1
, 5 (2006) (explaining that all agreements in restraint of trade
would be unlawful under the literal language of the Sherman Act and concluding that Congress intended to
analyze and outlaw only those agreements that are unreasonable).
5. See PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW § 303b4–f (4th ed. 2014) [hereinafter
AREEDA & HOVENKAMP] (differentiating between criminal and civil antitrust cases).
6. See, e.g., Leegin, 551 U.S. at 899 (“[T]he Court has treated the Sherman Act as a common-law statute.”);
Nat’l Soc’y of Prof’l Eng’rs, 435 U.S. at 688 (“Congress . . . did not intend the text of the Sherman Act to
delineate the full meaning of the statute or its application in concrete situations.”); see also AREEDA &
HOVENKAMP, supra note 5, § 104 (discussing the development of antitrust common law).
7. See Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71
ANTITRUST L.J. 1, 9–11 (2003) (discussing the evolution of early Sherman Act jurisprudence through the
Supreme Court’s interpretation of the Act’s common law terms); Rudolph J. Peritz, The “Rule of Reason” in
Antitrust Law: Property Logic in Restraint of Competition, 40 HASTINGS L.J. 285, 304 (1989) (noting Senator
Edmunds, a proponent of the Sherman Act, recognized “‘monopoly’ is a technical term known to the common
8. See PHILLIP E. AREEDA & LOUIS KAPLOW, ANTITRUST ANALYSIS 44 (5th ed. 1997) [hereinafter AREEDA &
KAPLOW]; MARGARET H. LEMOS, Interpretive Methodology and Delegation to Courts: Are ‘Common-Law
Statutes’ Different?, INTELLECTUAL PROPERTY AND THE COMMON LAW (Shyam Balganesh ed., 2013).
9. AREEDA & KAPLOW, supra note 8.
10. Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401, 2412–13 (2015) (“Congress . . . intended that law’s
reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic
potential.’ We have therefore felt relatively free to revise our legal analysis as economic understanding evolves
and . . . to reverse antitrust precedents that misperceived a practice’s competitive consequences.” (quoting Bus.
Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717
, 732 (1988)); see also Leegin
, 551 U.S. at 899 (explaining the
relationship between courts and Congress in interpreting the Sherman Act).
11. The DOJ has the power to prosecute criminal violations under the Sherman Act, Robinson-Patman Act,
and Clayton Act. “[C]riminal prosecution in general and imprisonment in particular have been confined to
instances of outrageous conduct of undoubted illegality.” AREEDA & HOVENKAMP, supra note 5, § 303b2.
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