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Deciding Between Bench and JuryTrial: Reflections After US Airways v. Sabre

Charles Diamond, Sergei Zaslavsky, Antitrust, Fall 2017, at 27

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Antitrust bench trials are rare enough in this “Age of Settlement.” Trying an antitrust case to a jury is rarer still. When lawyers have to choose between a jury or bench trial, they debate endlessly whether their chances improve or diminish before one or the other. In antitrust cases particularly, the conventional wisdom holds that economic and business complexities put most disputes beyond the intellectual reach of the average lay jury; that defendants can count on getting a fair shake only when a judge decides the merits; and that plaintiffs prefer juries because the plaintiff uniquely stands to benefit from the con- fusion that arises from competing economic testimony, debates over unfathomable concepts like relevant market, and the seemingly intemperate things that business people put in emails when discussing the merits of competition they face. And everyone assumes that a jury will award damages more generously.

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