Tuesday, November 10, 2009
Mark S. Popofsky (adjunct faculty, Georgetown University Law Center) has posted The Section 2 Debate: Should Lenity Play a Role? (Rutgers Business Law Journal, Vol. 7, 2010) on SSRN. Here is the abstract:
The Supreme Court’s recent decision in Illinois Tool Works, by invoking the Rule of Lenity in enforcing the Sherman Act in a civil setting, raises a fundamental question concerning that statute: Should the theoretical possibility of criminal sanctions for monopolization offenses (Section 2 of the Sherman Act) narrow the Sherman Act in civil actions? Commentators have suggested that the answer might be yes. This Essay disagrees, and argues that Lenity properly plays no role in judicial elaboration of the Sherman Act. Although the Supreme Court’s insistence that a statute with both civil and criminal applications must mean the same thing regardless of enforcement setting appears to preclude different constructions of the Sherman Act depending on the selected enforcement tool, that merely raises the more fundamental issue of whether the Sherman Act is ambiguous in a lenity-triggering sense. The Essay demonstrates both that the Sherman Act’s underlying Rule of Reason standard does not trigger the Rule of Lenity and that applying lenity to narrow the Sherman Act would not serve any of the Rule of Lenity’s asserted purposes.