A. The Working Group on the Role of Economics in Antitrust
The Working Group on the Role of Economics in Antitrust (WG3) was created by The Sedona Conference[R], a nonprofit research and education institute dedicated to the advanced study of law and policy in the areas of antitrust, complex litigation, and intellectual property. This Working Group is one of several working groups that have operated under the auspices of The Sedona Conference[R]. Other Working Groups have been (or are) concerned with electronic document retention and production; protective orders, confidentiality and public access; the intersection of the patent and antitrust laws; and claim construction in patent litigation. The purpose of the this Working Group is to define those areas of antitrust where economic analysis and economic evidence can make important contributions and to specify the nature and types of economic analysis and evidence that will be most helpful to courts in reaching decisions that will further the reasoned development of the law. The Working Group is also concerned with those areas of antitrust where economics may assume an inappropriate role that could be counterproductive in furthering the objectives of either the antitrust laws or of the Federal Rules of Civil Procedure.
In the mid-twentieth century, economic efficiency began to emerge as one of the principal goals of antitrust law. Some believe that efficiency should be the only goal, while others believe that antitrust law does (and should) embody other goals, such as protecting consumers, and perhaps that it should embrace noneconomic goals as well. In any event, the use of economic evidence and argument in antitrust cases has increased dramatically during the last several decades. As the brief history below of the use of economics in antitrust law suggests, economic issues gradually have overtaken noneconomic concerns so that, in the twenty-first century, economics has come to pervade virtually all aspects of antitrust cases, finding its way into every procedural step and numerous substantive issues.
In the spring of 2004, The Sedona Conference[R] Working Group on the Role of Economics in Antitrust was formed. The Working Group is composed of judges, attorneys, and academics experienced in antitrust issues. Initially, these participants focused their attention on a range of issues: best practices under Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702; best practices under Federal Rule of Civil Procedure 56; best practices for the use of economic evidence and testimony at trial; inappropriate use of economic evidence and testimony; the appropriate use of economic evidence and testimony in proof of concerted action; competitive harm and the appropriate means of proving it; and the use of economic evidence and testimony in analyzing and classifying commercial arrangements. Subgroups were formed to report on all of these matters.
The entire Working Group met for two days in mid-May 2004 to discuss the reports of the subgroups and to narrow the issues on which the Working Group would ultimately make recommendations. During that meeting, participants reviewed and discussed the subgroup reports as well...