On the Pretrial Use of Economists

• DOI: 10.1177/0003603X1205700307
• Date: 01 September 2012
• Author: Daniel L. Rubinfeld
• Published date: 01 September 2012
• Subject Matter: Article

On the pretrial use of economists

BYDANIEL L. RUBINFELD*

Oliver Williamson’s advocacy of a greater role for economists pretrial

was prescient. This article explains the value of such pretrial

intervention (in aligning incentives and encouraging settlement)

from law and economics perspectives, and advocates greater use of

court-appointed economic experts. The article also offers a brief

critical commentary on Williamson’s views with respect to predation.

I. INTRODUCTION

Writing in the Antitrust Bulletin just over 25 years ago, Oliver

Williamson proved to be an early and insightful observer of both

antitrust law and antitrust economics and the economics of legal

process.1Williamson’s advocacy of a greater role for economists

pretrial in antitrust cases was prescient; that role has steadily grown

to the point that today economists are now regularly involved in

major antitrust matters (public and private) at the earliest stages.

As an exemplar of the issues raised by an economist’s greater role,

Williamson offers a discussion of his role in the Barry Wright Corp. v.

THE ANTITRUST BULLETIN:Vol. 55, No. 3/Fall 2010 :679

* Robert L. Bridges Professor of Law and Professor of Economics,

University of California Berkeley and Visiting Professor of Law, New York

University.

1Oliver Williamson, Pretrial Uses of Economists: On the Use of “Incentive

Logic” to Screen Predation, 29 ANTITRUST BULL. 475 (1984).

© 2010 by Federal Legal Publications, Inc.