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Robert J. Anello and Richard F. Albert Robert J. Anello and Richard F. Albert

In recent years, practitioners have observed a tension between criminal enforcement of the broadly written terms of the Sherman Antitrust Act of 1890 and the modern Supreme Court’s notions of statutory interpretation and due process in the criminal law context. A certiorari petition filed in late August in Sanchez et al. v. United States, no. 19-288, asks the Supreme Court to address this tension, as embodied in the judge-made per se rule. The rule, a longstanding feature of antitrust doctrine, provides that certain categories of agreements among competitors are barred without further inquiry regarding whether, in fact, they unreasonably restrained trade. The question presented in Sanchez is “whether the operation of the per se rule in criminal antitrust cases violates the constitutional prohibition—grounded in the Fifth and Sixth Amendments—against instructing juries that certain facts presumptively establish an element of a crime.”

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