[11-May-05tenuous to expect individual business people to understand the realeconomic effect of their decisions, it is perhaps even more troubling toimpose that burden on courts. But it does not follow that we shouldabandon the attempt to achieve principled, accurate adjudication for the sakeof a faulty, yet facile, alternative.
The use of business documents to proveantitrust violations, however, can be just that. Reliance by courts andregulators on accounting information, business rhetoric and expressions of intent to prove antitrust violations is misplaced. And the likelihood of error resulting from the use of business documents is substantial.Nevertheless, there is a regulatory and scholarly effort to bring businessdocuments and business rhetoric to bear in proving antitrust cases.
Thisapproach has a “the light’s better over here” feel to it.
It is undoubtedly
complicated and less predictable. Proving economic issues requires extensivedocumentary evidence and endless testimony from economists and other experts.Most judges, and nearly all juries, lack the training necessary to make economicdeterminations. Although fact finders are adept at determining ‘who did what,when, and why,’ they lack the experience necessary to determine the significanceof specific economic conditions. Economists themselves cannot agree on theeconomic impact of many types of business conduct. If economists cannoteffectively evaluate the market effects of particular competitive practices, certainlyjudges and juries cannot be expected to do so.Thomas A Piraino, Jr.,
Regulating Oligopoly Conduct Under the Antitrust Laws
. L. R
. 9, 40-41 (2004) (quoting Mark Crane,
The Future Direction of Antitrust,
L.J. 3, 15 (1987)) (other citations omitted).
As Justice Holmes observed, “[i]f justice requires the fact to be ascertained, thedifficulty of doing so is no ground for refusing to try.” O
, Albert A. Foer,
The Third Leg of the Antitrust Stool: What the BusinessSchools Have to Offer to Antitrust
, 47 N.Y.L. S
. L. R
. 21 (2003)
Reclaiming a Role for Intent Evidence in Monopolization Analysis
, 54 A
. U. L.R
. 151 (2004); Norman W. Hawker,
Antitrust Insights from Strategic Management
, 47N.Y.L. S
. L. R
. 67 (2003) (suggesting that the antitrust community should consider and research strategic management, which “may create a new antitrust revolution”); Spencer Weber Waller,
The Use of Business Theory in Antitrust Litigation
, 47 N.Y.L. S
. 119, 122 (2003)
Spencer Weber Waller,
The Language of the Law and the Languageof Business
, 52 C
. L. R
. 283 (2001) (antitrust has devalued business“discourse” and theory and antitrust has been impoverished by this choice); Harry S. Gerla,
A Micro-Microeconomic Approach to Antitrust Law: Games Managers Play
, 86 M
. 892, 929 (1988) (attempting to “construct. . . a theory of antitrust law in which thekey actors are the real-world human managers of the firms rather than the theoretical profit-maximizing firms posited by classical microeconomic theory”). Professor Waller notes,among other things, that “[s]ophisticated corporations expend too many resources in their strategic planning and marketing decisions not to take seriously the results of that work.”
. at 334.
Ronald A. Cass,
Trade Subsidy Law: Can a Foolish Inconsistency Be Good Enough for Government Work?
. 609, 618 n. 40 (1990)(commenting on the use of accounting data in dumping cases and likening it to “the joke