Wednesday, October 21, 2009
Posted by D. Daniel Sokol
ABSTRACT: The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start by exploring the broader issues raised by the integration of economic expertise in litigation: in particular the risk of moral hazard and adverse selection because of the epistemic asymmetry between judges and experts and the risk of expert bias. The analysis of these problems will bring me to the question of the conception of science and of the relations between science and law that underpins the concept of scientific expertise and, more specifically, economic expertise. I will then identify the extent of the problem of epistemic asymmetry and expert bias by looking to the degree and the locus of the intrusion of economic analysis in competition cases. I will examine the instruments, procedural and substantive, employed by the legal system, in order to mitigate the risks flowing from the epistemic asymmetry and the expert bias claims. First, I will highlight the different institutional and procedural frameworks that were adopted at the European Union level and in some selected member states in order to integrate economic expertise in litigation. My objective will be to understand how these institutional solutions may address each of the identified problems. Second, I will look to 'substantive' law approaches in the adjudication of expertise, such as the development of specific standards for the admissibility and the sufficiency of economic expertise in courts, as an alternative or as an additional option to deal with the challenges raised by economic expertise. The paper will conclude that the possible adverse effects of the epistemic asymmetry and expert bias between judges and experts raise important concerns that the legal systems should tackle. The current procedural/institutional and substantive legal framework governing economic expertise does not however take sufficiently into account important concerns that are specific to economics and other social sciences, such as the preservation of the scientific 'competition' in the supply of economic theory and consequently methodological or assumptions-related pluralism in economic thought. In particular, I will argue against adopting specific standards of admissibility of economic expertise in Europe. This is a US context-specific solution which does not necessarily fit with the specific characteristics of the European legal system. It is also an approach that represents an outdated and partial view of the scientific as well as of the judicial adjudication process.