Of course, there are many holes one could try to poke in this. Maybe women economists are slated to be the testifying economic expert in challenged horizontal mergers that the parties’ abandon before litigation in federal court commences. Or maybe women economists are testifying as the economic expert in vertical merger trials in federal court (though I know of only two such acquisitions ). Or maybe women are testifying as the economic expert in challenged horizontal mergers that go through the Federal Trade Commission’s Part 3 administrative litigation channel or arbitration with the Department of Justice Antitrust Division rather than through federal court. Or maybe the past is not reflective of the future, with the composition of challenged horizontal mergers that have not yet been decided in federal court looking very different than those already decided (though I know of only one challenged horizontal merger pending a decision for which the U.S. government’s testifying economic expert is a woman ). More data––and along with it more sunshine––would be able to say whether any of these are real holes to poke or not.
When the financial stakes are high, to gain insights, data on challenged horizontal mergers in federal court often are augmented with data on the composition of the judiciary. The stakes are similarly high for advancing the diversity of voices within the economic and legal professions in high-stakes litigation. While the relatively small number of observations—23—may make it difficult to draw definitive conclusions, the patterns in the results are instructive and suggest scope for improvement. As with many aspects of business, if you do not measure it, then you cannot take action to improve it. Measuring diversity with data means we learn where we are and where there is room to improve.