Indiana Law Journal

Document Type


Publication Date

Summer 2019

Publication Citation

94 Indiana Law Journal 1223 (2019)


This Note proceeds in four Parts. Part I outlines the interpretive difficulties spawned by the vagueness of the Sherman Act—particularly, the judiciary’s necessary but undeniable departures from the text of the statute and the resulting doctrinal confusion. Part II considers ways in which the judiciary’s decision-making in Sherman Act cases approximates agency rulemaking and whether it makes sense to delegate interpretive authority to an antitrust agency. Yet, while the agency solution has upside, it would not easily escape criticisms that the Act does not provide sufficient notice of the conduct it proscribes and that the Act is an impermissible delegation of legislative authority. Part III examines these two hurdles, taking stock of separation of powers and void-for-vagueness principles. Part IV concludes.