Expert economic evidence has become increasingly important in antitrust cases, largely because the Supreme Court in embracing certain strains of economic authority has adopted rules that make economic effects in individual cases decisive. Some economic evidence is accessible to antitrust decision makers, even if it is cognitively challenging. The danger posed by this kind of evidence, as Roger Blair has pointed out, is that witnesses will make assertions unsupported by theory. Traditional litigation devices can adequately address this danger. But economic analysis has become increasingly technical, and typical antitrust decision makers are incapable of understanding it. When decision makers confront information they do not understand, they avoid reaching decisions altogether or they use heuristic processing and peripheral cues, which results in bias and cognitive illusions. Neither reaction is desirable. Proposals for addressing the hazards of testimony that is not understood, including the increased use of court-appointed experts, are unsatisfactory. Perhaps some benefit can be had by encouraging more rigorous appellate review.
All Science Journal Classification (ASJC) codes
- Economics and Econometrics