Paradox of Proof
Paradox of Proof
This chapter explores the “paradox of proof.” This paradox grows out of the interplay of two starting points: deeming agreement to require more than demonstration of successful interdependence—such as by also using certain sorts of communications—and needing to infer the existence of agreement from circumstantial evidence, out of a recognition that parties hide their actions from legal scrutiny. It is assumed that, in adjudication, it frequently will be impossible to observe the communications that the defendant firms employed. Nevertheless, the factfinder must infer whether or not certain means of communication were used, based on what can be observed about market conditions, notably, how conducive they are to successful oligopolistic coordination and whether such successful coordination appears to have occurred.
Keywords: paradox of proof, interdependence, circumstantial evidence, adjudication, communications, oligopolistic coordination
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