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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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Decoding DOJ’s New ‘Justice AI’ Initiative
By James D. Gatta, Allan J. Medina and Ian Q. Rogers
The DOJ is likely to face many practical challenges and novel issues as it begins coding its own algorithm for AI-related enforcement. This article briefly examines three areas of AI-related enforcement where such practical challenges and novel issues may arise.
The FTC and DOJ’s New Guidelines Promise Sharper Scrutiny of Mergers
By Karen Hoffman Lent and Kenneth Schwartz
From loosened structural presumptions to unconventional theories of harm such as “ecosystem competition” to consideration of a merger’s effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
Supreme Court Set to Decide On Competing Interpretations of Federal Corruption Statute
By Elkan Abramowitz and Jonathan Sack
In this article, we describe the competing interpretations of Section 666 and comment on the implications of a Supreme Court decision in United States v. Snyder, where it will decide whether the law criminalizes “gratuities,” and not simply “bribes,” given to state and local officials.
The Role of the SEC In Cryptocurrency Regulation and Enforcement
By Jay Dubow, Joanna Cline and Milica Krnjaja
The SEC's cryptocurrency-related actions reached a new high in 2023, jumping more than 50% when compared to 2022. We expect the SEC’s enforcement efforts in this area to continue at a high pace in 2024, even though whether or not cryptocurrency should be classified as a security or something else remains uncertain.