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Christopher D. Lischewski v. United States

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 20-10211 · judgment July 7, 2021

Certiorari denied · May 2, 2022
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a Ninth Circuit decision below, a dissent in the court below (flagged in the petition), and counsel who has filed here before.

Question presented

The Sherman Act, 15 U.S.C. § 1, prohibits any contract or combination “in restraint of trade or commerce.” This Court has long held that Congress intended that language to incorporate common-law principles, and thus to prohibit only those arrangements that have an “unreasonable” anticompetitive effect. An unreasonable anticompetitive effect is thus an element of a Sherman Act offense. Lower courts, however, have held that in criminal antitrust prosecutions, that element need not be submitted to a jury or proven beyond a reasonable doubt. They have held that the element of unreasonableness may be satisfied either by the application of a conclusive presumption or by a judicial finding that the defendant’s conduct falls within judicially-created categories of conduct deemed illegal per se. The question presented is whether the operation of the per se rule in criminal antitrust cases violates the constitutional principle that every element of an offense must be submitted to a jury and proven beyond a reasonable doubt.

Counsel of record

For petitioner
Dennis P. Riordan
Riordan & Horgan

For respondent
Elizabeth B. Prelogar
Solicitor General

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage

Proceedings

  1. May 02 2022
    Petition DENIED.
  2. Apr 13 2022
    DISTRIBUTED for Conference of 4/29/2022.
  3. Apr 11 2022
    Reply of petitioner Christopher Lischewski filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  4. Mar 30 2022
    Brief of respondent United States in opposition filed.
    Main DocumentCertificate of Word Count
  5. Feb 18 2022
    Motion to extend the time to file a response is granted and the time is further extended to and including March 30, 2022.
  6. Feb 17 2022
    Motion to extend the time to file a response from February 28, 2022 to March 30, 2022, submitted to The Clerk.
    Main Document
  7. Jan 28 2022
    Brief amici curiae of Due Process Institute and Cato Institute filed.
    Main DocumentProof of ServiceCertificate of Word Count
  8. Jan 14 2022
    Motion to extend the time to file a response is granted and the time is extended to and including February 28, 2022.
  9. Jan 12 2022
    Motion to extend the time to file a response from January 28, 2022 to February 28, 2022, submitted to The Clerk.
    Main Document
  10. Dec 29 2021
    Response Requested. (Due January 28, 2022)
  11. Dec 22 2021
    DISTRIBUTED for Conference of 1/7/2022.
  12. Dec 17 2021
    Waiver of right of respondent United States to respond filed.
    Main Document
  13. Dec 06 2021
    Petition for a writ of certiorari filed. (Response due January 7, 2022)
    PetitionAppendixCertificate of Word CountProof of Service