The only available alternative, sending the case to a jury, is probably no better.9 Both options forfeit much of the benefit of courtroom expertise, undermining the Supreme Court's vision of antitrust as an area of law driven by sophisticated economic science. Since antitrust provides a good illustration of the hidden consensus problem, it might be a good place to test solutions to it.
THE ADVERSARIAL PRESENTATION OF EXPERTS MASKS CONSENSUS
Although bias or outright fraud may impair truth-finding in antitrust hearings, the problem of dueling experts is more fundamental than conventional wisdom allows. One good way to select from a heterogeneous set of expert opinions would be to find out whether there is a consensus view and to capture its advantages of accuracy and predictability.1 6 To do this, the law needs ' a fact-finding mechanism that is good at revealing consensus.
Sources of Heterogeneity Among Expert Opinions
EXPERT TESTIMONY IN ANTITRUST LITIGATION
See Robertson, supra note 3, at 178 (noting "the mass media's reflexive notion that there are two equally valid sides to every story"). 37 Robertson, supra note 3, at 184 ("Litigants use many devices to select experts, including litigation history, oral testimony, and published papers.").
The Role of Economics in Antitrust Law: The "Whole Game
The rise of the rule of reason in conspiracy cases.-The rule of reason is famously a misnomer;4 7 in fact it is an all-considered standard. Justice Easterbrook argued that to say that a practice is subject to the rule of reason practically amounts to saying that it is per se legal.
Deference to Expert Authority in Antitrust
THE DUBIOUS AUTHORITY OF ECONOMIC EXPERTS IN ANTITRUST TRIALS
110 For another example of the Court's deference to consensus positions when faced with disagreement, see State Oil Co. Judges make similar first-order assessments at other stages of a lawsuit that require a summary assessment of the merits, such as class certification or consideration of a temporary injunction pending final disposition of the case. According to his argument, mere deference to economists would place the substantive reasoning behind a legal decision beyond public understanding, as would "black box" jury decisions.
Harcros Chemicals, Inc., a case alleging that chlorine wholesalers in Alabama fixed prices in violation of the Sherman Act.17 The plaintiff's expert presented an economic analysis of market structure and competitive behavior that concluded that “[ the liquid chlorine industry, especially the activities of repackagers/distributors match the[] market conditions and product characteristics.Baumol, Research, Pure and Impure: Their Economies of Scope, in THE ROLE OF THE ACADEMIC ECONOMY IN LITIGATION SUPPORT, supra note 24, at 31 , 31. Sheila Jasanoff identifies a more troubling case of courtroom experts publishing related articles: “The . 27 But the economist's methodology—the analysis of oligopolistic markets using a Cournot model assuming rational, profit-maximizing, quantity-determining oligopolists—was sound. which mixed second-order analysis of methodology with first-order use of that methodology.130 Its opinion reads more like a discussion of the sufficiency of the evidence rather than its admissibility.
“Scientifically flawed and irrelevant under Daubert.”13 6 Her in-depth and fairly competent review of the expert testimony revealed significant flaws in the model, but required her to assume the role of a peer reviewer of the argument from an economist. She stepped beyond her limited role as gatekeeper and evaluated the content and conclusions of the expert statement.
Matsushita Encourages Judicial Second-Guessing of Economic
Under a strict interpretation of the summary judgment standard, disbelieving an expert for material reasons invades the province of the jury, which is tasked with resolving all questions of credibility. Matsushita alleged an improbable conspiracy—decades long and involving numerous companies—to sell Japanese televisions in the United States at astonishingly low prices in an attempt to drive American manufacturers out of business.45 Plaintiffs' experts presented evidence that the Court characterized as merely "consistent" with an inference of exclusion through undercutting.14 The Third Circuit ruled that the district court should not have excluded the expert testimony because, once the expert was qualified, he was entitled to rely on whatever he wanted (respecting the content neutrality of authority).147 But The Supreme Court reversed. 144 See AREEDA & HOVENKAMP, supra note 41, 309, at An important but perhaps unanticipated consequence of Matsushita is that it may require the federal judge to engage the economist on the latter's own terms. Matsushita often compels the antitrust judge to step into the expert's discipline and to reject the expert's own substantive conclusions in favor of the judge's own.").
In particular, the plaintiffs alleged that Japan's consumer electronics manufacturing market was oligopolistic, that they faced "higher fixed costs than their U.S. counterparts," that they had capacity that exceeded Japanese demand for their products , that Japanese manufacturers set minimum export prices. by agreement, that they also limited their American distributors by agreement, and that these minimum export prices were consistently undermined by complex rebate schemes. There was no motive on the part of the Japanese in particular, so that a summary judgment was necessary.'5. Atlantic Richfield Co., for example, the Ninth Circuit characterized Matsushita and its progeny as holding that "[i]n the context of antitrust law, if there are undisputed facts about the structure of the market that make the inference economically unreasonable, the expert opinion is insufficient to support a jury verdict." 52 In other words, if a judge is of the opinion that a fully qualified economic expert is 'economically unreasonable', his testimony can be disregarded.
There may be similar pressure to decide economics as a legal issue at other stages of litigation that require a summary assessment of the merits. For example, the First Circuit recently reversed a class certification order because the trial judge had not adequately developed and evaluated the economic realities behind the antitrust claim.158 He noted disapprovingly of the lower court's willingness to delay evaluation. critic of the economics of the matter.' 59 The First Circuit recognized that “[i]t is true that the validity of plaintiffs' theory is a matter of ordinary dispute.
Weyerhaeuser and the Perils of Leaving Economic Judgment to a Jury
34;We are not looking for hard factual evidence here, but for a more thorough explanation of how to determine the crucial evidence behind the prosecution's theory.'1 61 A similar pressure to assess the economic merits of a case may exist at the preliminary injunction stage.162 Pozdena pointed out that the idea of 'increasing the costs of rivals' had 'failed to gain widespread acceptance in the economic community'. 'substantially more' than what is 'reasonably necessary', terms that cannot be defined without making a substantial judgment about how a company should conduct its production activities.170 Viewed in the best possible light, Dr.
Zerbe, Jr., supra note 166, at 4-5 ("Specifically, Weyerhaeuser purchased oak logs in quantities that exceeded not only what it would have purchased [as] absent the predatory conduct, but also more than what could be processed before the degradation of saw logs."). But the Supreme Court reversed, apparently driven by the idea that the weight of economic authority was on Dr. 80 They argued that both are rarely successful and that failed efforts actually benefit consumers in the form of lower prices for finished goods.'81 This. The argument proved dispositive for the Supreme Court.18 2 The jury was apparently no more able to discover the consensus position than Judge Panner was.
The problems with jury decision-making in technical areas are well documented, especially in the antitrust context. First, in the process of recognizing an expert's opinion, I suggest that the judge provide testimony as to how widespread that opinion is within his academic community.
Existing Proposals: The Disinterested Expert
Part of the problem with allowing judge-appointed expert witnesses is that the process is ad hoc and one-time. Second, Justice Breyer praises the collaboration between the American Association for the Advancement of Science and the ABA's Science and Technology Section, designed to "assist courts in finding skilled experts." The longer an economist works for a court, the more she becomes part of the legal world.
Part of the value of an expert witness is her status as an outsider—both because she provides expertise in her field, but also because the more an expert learns about the law, the more we worry about the role of her as an advisor is legal or political. , not only technical.'99. Although Robertson emphasizes bias as the source of disagreement among experts, his innovation can address the problem of expert battle even if the source of heterogeneity among expert opinions is not bias or superstition, but rather reasonable scientific disagreement. Blind expertise addresses a "bad sample" dimension of expert opinion discussed in Part 1.
He accurately notes that if part of the advantage of blind expertise is that the expert does not know who is seeking his opinion, then the intermediary will have to present the question and the data in a way that suppresses this identity. This is likely to involve considerable work on the part of the intermediary, requiring him to really get involved in the science of the matter.
New Directions: Tinkering with Adversarial Expertise
Even if Roberston's idea is more expensive than he acknowledges, it may be worth considering in the context of antitrust litigation. If blind expertise is worth trying at all, it's probably worth trying in the antitrust context first. Related to this, a good expert must know where his own opinion lies in the broader context of academic arguments.
But the jury will properly reject the expert's claim that he is in the majority, knowing that the expert will want to appear that way. Unconditional opinions of experts. – The new proposal stems from another selection process that takes place in the courtroom: jury selection. In this goal, the peremptory strike has failed spectacularly, because in the context of jury selection, the peremptory strike cannot reliably and neutrally eliminate biased social beliefs and values.
The defendant will strike A only if he believes that A is one of the N experts in the field who will be most detrimental to his defense. In the case of a normal distribution of expert opinions, procedures that average the opinions, such as Judge Posner's tripartite panel, may be preferable.
