In Section II of this Article, we review the Supreme Court’s standard for allowing expert testimony as explained in Daubert and related opinions, and discuss in detail the City of Tuscaloosa and Concord Boat decisions that, following Daubert, excluded the economic expert testimony on which the plaintiffs relied. Section III presents an overview of the Chicago School of Economics, which sets a foundation for our commentary on the Post-Chicago school and serves as a basis for the evaluation of Chicago-based testimony in Section V. Section IV discusses the Post-Chicago School approach to antitrust analysis as a refinement of the Chicago school that trades the ability to make fact-based generalizations for mathematical elegance. Section V approaches economic expert testimony in light of the Daubert standard, focusing on whether either approach to expert testimony is consistent with the standard that the Court has laid out. Section VI provides a set of examples based on various high-profile antitrust litigations. One of the examples focuses on an actual Daubert ruling (Brand Name Prescription Drug Litigation), while the others describe simulated Daubert analyses that could have taken place had the Daubert arguments been presented challenging actual (Microsoft) or hypothetical (Kodak) testimony. We conclude by observing that, as courts continue to take their “gatekeeping” responsibilities seriously, the scope for Post-Chicago economic testimony will likely be increasingly limited.
Coate, Malcolm B. and Fischer, Jeffrey H.
"Can Post-Chicago Economics Survive Daubert?,"
Akron Law Review: Vol. 34
, Article 1.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol34/iss4/1