Dick Langlois’ post on Carl Kaysen’s role in the United Machinery antitrust case reminded me of a question I’ve been meaning to blog about. Langlois writes:
Obituaries praise Kaysen for his role as a policy intellectual of great scope, especially in the area of nuclear non-proliferation. But they either fail to mention, or mention with considerable approval, Kaysen’s pivotal role in the famous 1954 United Shoe Machinery case. Kaysen’s view of the case, and of the role of economic analysis in antitrust, is a key example of what Williamson calls the “inhospitality tradition” — that any kind of contract we don’t understand must therefore be anticompetitive. In the eyes of many present-day economists, Kaysen is implicated in having destroyed the American shoe machinery industry and with it the American shoe industry. (The post-mortem is by Masten and Snyder.) Not exactly McNamara in Vietnam, but worth mentioning amid the hagiography of Kaysen, not to mention the reawakened culture of elitist decision-making in Washington.
Kaysen was retained by Judge Wyzanski in United Machinery. Kaysen sat in court with the judge, examined the evidence, and briefed the court — though the brief was apparently not available to either side. In another famous example, economist Alfred Kahn was appointed in New York v. Kraft General Foods pursuant to Federal Rule of Evidence 706. Judge Posner has long urged that district courts make greater use of court-appointed experts. We recently discussed Judge Sarin’s reliance on economist Orley Ashenfelter to help resolve a Daubert dispute. Michael Baye and I discuss judicial training in basic economics as one method of mitigating problems arising out of economic complexity in antitrust cases, and provide some empirical evidence suggesting positive returns to this approach in less complex cases.
The reason the Kaysen and Kahn cases are so frequently discussed, of course, is because the examples in antitrust are few and far between. As I understand it, judicial use of court-appointed “neutral” experts or special masters is very rare in antitrust. Casual empiricism and a little bit of digging suggest that it is much more common procedure in, for example, appointment of experts with specialized knowledge in science in patent cases involving claim construction. Turns out, the lack of court appointed experts appears to be a real phenomenon, and one that doesn’t get much attention in part because it happens so infrequently. But the problem is at least perceived to be a big one in antitrust. 24 percent of economists in the ABA Task Force survey opined that judges don’t understand the general economic issues in modern antitrust litigation.
So, why is it that federal judges don’t use court appointed economists more often? Is it that judges are more comfortable relying on experts in hard sciences but there is some stigma in admitting one needs “help” to understand economic testimony? Are the outcomes in areas where courts do use court appointed experts more frequently positive? Do they reduce appeal and reversal rates for district court judges? If the stylized fact that court appointed experts are used much more frequently in some areas of the law than others, this seems like a neat puzzle to try to both document and explain. Any thoughts?
