Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the Experts

Haw, Rebecca | July 1, 2012

The adversarial presentation of expert scientific evidence tends to obscure academic consensus. In the context of litigation, small, marginal disagreements can be made to seem important and settled issues can be made to appear hopelessly deadlocked. This Article explores this dynamic’s effect on antitrust litigation. Modern antitrust law is steeped in microeconomics, and suits rely heavily on economic expert witnesses. Indeed, expert testimony is often the “whole game” in an antitrust dispute because experts testify about dispositive issues such as 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 antitrust judges are faced with the appearance of deadlock among economic 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. This 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 likelihood that consensus economic views prevail at trial.