S&C Partner Nic Bourtin authored an article for New York Law Journal discussing the constitutional challenges raised by criminal prosecutions involving antitrust violations, insider trading and fraud against the government. The article was co-authored by Allison Caffarone, former S&C associate and assistant professor of law at Touro Law School.
The authors examine whether judge-made doctrines violate due process and the constitutional separation of powers by punishing conduct without clear legislative authority. They offer analysis of recent Supreme Court decisions and explore what this means for future enforcement, compliance and defense strategies.
“The persistence of these challenges across decades of litigation and commentary suggests that the constitutional concerns are not merely academic or strategic. They are real and must not be ignored,” the authors write. “A legal system that permits punishment without clear legislative command is not governed by law, but by prosecutorial and judicial whim.”
Read: “Are Criminal Antitrust, ‘Klein’ Conspiracy, and Insider Trading Prosecutions All Unconstitutional? The Untenable Legal Bases of ‘Judge-Made’ Criminal Law”