The Department of Justice (DOJ) has recently reasserted its power to bring criminal prosecutions under section 2 of the Sherman Act. This represents a dramatic break from the DOJ’s long-established practice of reserving criminal antitrust prosecutions for “hardcore” cartel behavior assessable under the per se rule rather than the rule of reason. This Article sets out the historical precedent for section 2 criminal prosecutions and explores the many challenges that the DOJ would need to overcome in order to succeed in any such prosecution at trial. The Article concludes that criminal prosecution of alleged unilateral monopolization offenses would present intractable difficulties for the DOJ in particular, given the high criminal standard of proof and the number and complexity of the issues that would need to be proved pursuant to a highly nuanced rule of reason analysis. The Article notes that such a policy would also move the United States further away from the approach to antitrust enforcement in other jurisdictions around the world, with potential knock-on implications for cooperation among enforcers. 

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