Abstract
Economists regularly appear as expert witnesses in antitrust litigations. The chapter analyzes how their models and methodologies have performed vis-à-vis the standards of relevance and reliability affirmed by the US Supreme Court in Daubert v. Merrell Dow Pharm. Inc. (1993). New data are provided on the number of antitrust economists whose expert testimonies have not survived a Daubert challenge. Explanations for such a poor record range from the judges’ insufficient economic literacy to skewed procedural rules, from the high specificity of antitrust cases to widespread identification problems in economic models.
This chapter is a shortened version of Giocoli (2020). I thank the Journal of the History of Economic Thought for permission to republish some portions of it.
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Notes
- 1.
Rule 702—Testimony by Expert Witnesses: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”
- 2.
The debate has involved philosophers of science, epistemologists, sociologists, and legal scholars. For more details and a few references, see Giocoli (2020).
- 3.
Economists use to call it the identification problem. See Sect. 7.5.
- 4.
- 5.
- 6.
For prescient remarks, see Gavil (2001, p. 6).
- 7.
According to Langenfeld and Alexander (2011, p. 23 and Table 1), roughly one fifth of Daubert challenges against economists came in antitrust cases, despite the latter representing only 0.3% of total cases between 2000 and 2008.
- 8.
See www.dauberttracker.com. I am especially grateful to Daubert Tracker CEO Myles Levin for having granted free access to the database. The following analysis also used LexisNexis.
- 9.
This figure (59% of success against defendant experts) is the only significant difference with respect to Langenfeld and Alexander’s findings.
- 10.
This is what the Ninth Circuit Court lamented in Daubert v. Merrell Dow Pharms., 43 F.3d 1311, 1316 (9th Cir. 1995), quoted by Werden (2008, p. 817).
- 11.
The Supreme Court itself has acknowledged the almost insurmountable challenges that the economic analysis of antitrust issues presents to generalist judges and juries. See, for example, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 2007, at 558–559.
- 12.
For another exception, see Baye and Wright (2011), who attempt to examine the effects of economic complexity and basic economic training on judicial decisions in antitrust cases.
- 13.
A famous example is the exclusion by the trial court in In re Brand Name Prescription Drugs Antitrust Litig., (1999-1 Trade Cas. (CCH) 72, 446, N.D. Ill.) of most of the testimony proffered for the plaintiff by Nobel laureate Robert Lucas. According to the court, Lucas had inadequate knowledge of the specific nature of the pharmaceutical industry.
- 14.
Answering this question would require an analysis of the specific, case-by-case motivations for the rejection—something which transcends the limits of the present chapter.
- 15.
For reasons of space we will not deal with another possible explanation, which calls into play the methodological distance separating the approach to IO that, inspired by the Chicago School, still dominates antitrust enforcement in America, from that considered mainstream by most academic literature, the so-called Post-Chicago approach. See Giocoli (2020).
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Giocoli, N. (2020). Why Do US Judges Reject Antitrust Experts?. In: Cserne, P., Esposito, F. (eds) Economics in Legal Reasoning. Palgrave Studies in Institutions, Economics and Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-40168-9_7
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