In a 1983 article titled “What Does an Economist Know?” Nobel Prize-winning economist George Stigler acknowledged that economists have “no special skill in reading documents and relating them to actual behavior.” Yet, since then, some economists have done exactly that repeatedly in antitrust litigation. This disincentivizes cooperation between competitors that can serve consumers because their collaboration could be misconstrued as unlawful collusion, presenting massive civil exposure and even criminal penalties. This is especially problematic today when competitor collaborations may be needed “to protect Americans’ health and safety” during a global pandemic, as both the Department of Justice Antitrust Division and the Federal Trade Commission recently recognized.
A price-fixing conspiracy is an intentional act. Obviously, economists have no special ability to read the minds of those accused of conspiring and determine their intent or knowledge. Nevertheless, in price-fixing litigation, some economic experts declare behavior conspiratorial (or not) based on their own reading of documents. They characterize such opinions as “qualitative” analysis of the documents, as distinct from quantitative analysis of data. Not surprisingly, those economists retained by plaintiffs derive collusion from the documents while those retained by defendants do not. When courts admit such “qualitative” opinions as “expert” testimony, they do a disservice to the jury—and, frankly, to the field of economics. As Stigler rightly admitted, not only does an economist lack expertise in interpreting documents, “his skill in document interpretation is on average inferior to that of a lawyer.” While lawyers may interpret documents for juries, a key distinction between counsel’s interpretations and an expert’s is that what lawyers say is not evidence.
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