In the Beginning: The Creation of the Economic Expert in Antitrust

Abstract

Today one cannot imagine antitrust litigation without the use of economic experts. Defendants and plaintiffs alike pay handsomely for their reports and testimony. However, the use of economists as expert witnesses did not begin until the iconic case of United States v. United States Steel, when two prominent economists, Francis Walker and Jeremiah Jenks, testified on behalf of the Department of Justice and United States Steel. Drawing on the original trial transcript, this paper assesses their role in the litigation. While their level of theoretical sophistication and empirical analysis falls short of today’s standards, the testimony of Walker and Jenks featured some of the same elements of expert testimony that continue today and analysis that was a precursor to the Chicago School’s perspective on competition.