Economic authority and the limits of expertise in antitrust cases

In antitrust litigation, the factual complexity and economic nature of the issues involved require the presentation of economic expert testimony in all but a few cases. This dependence on economics has increased in recent years because of the courts' narrowing of per se rules of illegality and the courts' expansion of certain areas of factual inquiry. At the same time, however, courts have limited the scope of allowable expert testimony through the methodological strictures of Daubert and its progeny and through heightened sufficiency requirements. In this Article, Professors Page and Lopatka make four important points about these judicially imposed constraints on expert testimony. First, they contend that these constraints, in the first instance, rest on "economic authority" - a body of economic ideas adopted by the courts from the scholarly literature. Second, Page and Lopatka analyze a wide range of antitrust decisions to show that much of this economic authority is taken either directly or indirectly from the "Chicago School" of antitrust economics. Third, through analysis of existing case law, the authors show the ways in which the courts apply economic authority as a screen in deciding which evidence to admit and which to exclude. In making this point, the authors highlight four important antitrust categories: determination of predatory pricing; market definition and assessment of market power; characterization of cartels and proof of "agreement" in cartel cases; and the determination of damages. Fourth, Professors Page and Lopatka end by examining the legitimacy of assigning such a defining role to economic authority in general, and to the Chicago School in particular. In making this point, the authors revisit the continuing controversy over the role of "post-Chicago" economic analysis.