When non-law-abiding citizens wonder whether their conduct is subject to criminal penalties, most turn to state and federal criminal statutes for guidance. Under antitrust law, potential wrongdoers must look to the Sherman Act – a broad “charter of freedom” requiring an unusual level of interpretation by federal courts. Reflecting Congress’ belief that “competition is the best method of allocating resources in a free market,” the Sherman Act simply outlaws “every contract, combination, or conspiracy in restraint of trade or commerce.” The drafters of the Sherman Act could have delineated specific categories of proscribed conduct such as bid-rigging, price-fixing, or entering into no-poach agreements, yet the Act says nothing at all to this effect. Instead, Congress left the task of construing the Sherman Act’s vague mandate in the hands of the courts, forcing them to determine what conduct is prohibited under the Act on a case-by-case basis. While the judiciary has made significant headway in defining the contours of unlawful behavior in consumer markets over the past century, a dearth of precedent concerning the labor market has left employers with little to no notice as to what may constitute illegal behavior in the labor market.
No-Poach, No Precedent: How DOJ’s Aggressive Stance on Criminalizing Labor Market Agreements Runs Counter to Antitrust Jurisprudence,
87 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol87/iss2/9