Pretrial uses of Economists: On the use of “Incentive Logic” to Screen Predation

• Date: 01 September 1984
• DOI: 10.1177/0003603X8402900302
• Published date: 01 September 1984
• Author: Oliver E. Williamson
• Subject Matter: Article

The Antitrust Bulletin/Fall 1984

Pretrial uses

of

economists:

on the use

of

"incentive logic"

to screen predation

BY

OLIVER

E. WILLIAMSON*

475

The use

of

economists to give expert testimony to inform the

court and jury during antitrust trials is both widespread and

controversial. One

of

the problems with such testimony is that it

sometimes gets swept up with the adversarial quality

of

the

courtroom.I

Although attorneys also use economists to assist them in

evaluating pretrial issues, including the preparation

of

pretrial

memoranda and motions, direct contact between economists and

court at pretrial stages is rare. There is a growing opinion,

however, that this is unfortunate and that the judicial process

would benefit from earlier exposure to an assessment

of

the

economic merits

of

a case. Several benefits can result.

•

Gordon

B. Tweedy Professor

of

Economics

of

Law and Organiza-

tion, Yale University.

1The issues have reached even the popular press. See

John

A.

Jenkins,

"Experts'

Day in

Court,"

New York Times Magazine, Dec. 11,

1983, at 98-106.

©1984by Federal Legal Publications. Inc.

476 : The antitrust bulletin

Most important of these is that it forces the parties and the

courts to focus on the economic issues early. Minor or mistaken

issues can be filtered out and attention can thereafter be focused

on major matters

of

real substance. An early separation

of

the

wheat from the chaff reduces the likelihood

of

obscuration at

trial stages, which saves time and avoids confusion. Occasionally,

an examination

of

the economic merits may so dramatically

clarify the issues

that

pretrial settlements

that

would not

otherwise be reached can be agreed to. Asking economists to

prepare pretrial memoranda on the merits has the advantage,

moreover,

of

avoiding the adversarial dynamics

of

the court-

room. Amore temperate and objective assessment should, as a

consequence, thereby obtain.

I recently participated in a case in which the preparation

of

a

pretrial memorandum on the economic merits appeared to con-

tribute to a settlement. Ishortly thereafter attended aconference

on the Place

of

Economics in Legal Education;' in which the uses

and misuses

of

expert economic

witnesses-both

in general and in

relation to Judge Edward R. Becker's influential opinion in

Zenith Radio Corp. v. Matsushita Electrical Industrial

Co.J-

were discussed. The possibility

that

greater pretrial uses

of

econo-

mists should be made, perhaps in conjunction with pretrial

memoranda, was raised and elicited an interested response among

conference participants.

The general arguments favoring such pretrial uses are those

set out above. Here as elsewhere, however, it is often helpful to

consider a specific example. The memorandum

that

Iprepared

and which was submitted to the court in the Barry Wright v.

2The conference was held in Denver, Colorado, Oct. 28-30, 1982,

under the auspices

of

the Association

of

American Law Schools and the

Emory University Law and Economics Center.

505 F. Supp. 1313 (E.D.

Pa.

1980).