Sherman Act Is An Unconstitutional Criminal Statute: Part 2

Law360, New York (July 19, 2017, 11:25 AM EDT) -- In the first part of this piece, I argued that the Sherman Act was unconstitutional as a criminal statute because it is void for vagueness. A statute that criminalizes all restraints of trade cannot be saved by the U.S. Supreme Court explaining what Congress really must have really meant. What passed constitutional muster when the Sherman Act was a misdemeanor[1] merits another look now that the statute carries a maximum jail time of 10 years.

In the second half, I discuss how I think the criminal element of the Sherman Act should be fixed.

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