April 1, 2009
"A Practical Solution to the Reference Class Problem"
An article by Edward Cheng (Brooklyn Law) called "A Practical Solution to the Reference Class Problem" has just been posted on SSRN.
The "reference class problem" is a key issue in mass tort cases. For example, say a judge wants to hold a series of "bellwether" trials -- that is, a series of sample trials -- in order to determine what compensation is due to a group of plaintiffs. To do so, judge will have to decide what criteria to rely on in determining the sample. In other words, the judge must determine the appropriate reference class. The problem is that if the group is heterogeneous the judge will have to pick and choose among criteria, and it is hard to determine which criteria are relevant. This is the reference class problem and is a central barrier to certification of mass torts class actions because it renders them unmanageable. Cheng proposes a solution in his paper, and I haven't read it yet to be able to evaluate whether this solves the problem. It certainly presents food for thought and is an important issue!
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