The Law and Economics of the Economic Expert Witness

Abstract

I will consider the law and economics of the use of economic expert witnesses. After introducing the law governing the use of expert witnesses (including economists), I analyze and respond to several concerns regarding the use of expert witnesses. The first is that expert witnesses paid by the respective parties are bound to be partisans (hired guns) rather than being disinterested, and hence presumptively truthful, or at least honest, witnesses. A second concern is about intelligibility once the expert's evidence has been admitted. A third concern about expert testimony is that opposing experts often cancel each other out. Supposing that the use of economists' testifying as expert witnesses is here to stay, we should consider how the system might be improved. My major proposal is the greater use of court-appointed experts selected on the arbitration model, but I have two additional proposals.