Monday, July 11, 2011
Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the Experts
Posted by D. Daniel Sokol
Rebecca Haw, Harvard Law School, Vanderbilt University School of Law has posted Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the Experts.
ABSTRACT: The adversarial presentation of expert scientific evidence tends to obscure academic consensus. Small, marginal disagreements can be made, in the context of litigation, to seem important and settled issues can be made to appear hopelessly deadlocked. This Article explores this dynamic in the context of antitrust litigation. Expert testimony is often the “whole game” in an antitrust dispute since experts testify about dispositive issues like the competitive effect of a business practice or the relevant boundaries of a market. And the Supreme Court has encouraged – even engineered – this delegation to economic authority. But when judges are faced with the appearance of deadlock among experts, they are forced to either decide the substance of the economics themselves or ask the jury to resolve it as a matter of fact. Both practices void much of the benefit of courtroom expertise. The Article examines several reforms that would make expert testimony less adversarial, and evaluates their ability to better reveal the true distribution of expert opinion on an economic question. It then presents two reforms that, while preserving the adversarial structure of expert evidence, would increase the chances that consensus economic views prevail at trial.