Merger Trials: Looking for the Third Dimension

Posted by D. Daniel Sokol

Vaughn R. Walker (U.S. District Court, Northern California), the judge who wrote the important Oracle/Peoplesoft opinion, has written on Merger Trials: Looking for the Third Dimension.

ABSTRACT: I do not argue here that concern about judicial competence regarding complex economic evidence is without substance. Nor do I contend that mergers are best committed in the final analysis to generalist judicial officers who lack expertise in issues of industrial organization although, as will be noted, this provides some check against complete capture of merger policy for purely political purposes.

Rather, accepting that in the United States we have committed important decisions about mergers to generalist judges, I argue that a judge’s task in a merger case does not entail recondite analysis. Rather, the judge’s task is less one of economic learning than it is of using the economic analysis to bring the evidence into sufficient focus to reach a decision.