April 7, 2012
Class Action Blawg on the Case Against "Trial by Formula"
The Class Action Blawg has a post citing useful caselaw against the concept of trial by formula - that is, the use of statistical analysis to determine either apportionment of damages (less controversial) or liability (more controversial). Thanks to our own Sergio Campos for the tip.
I just published a paper on this very topic called The Case for "Trial by Formula." In this defense of the use of statistics, I show the benefits for statistical analysis in mass tort cases for the promotion of equality between plaintiffs. "But what about defendants' due process rights?" the authors over at CAB, Justice Scalia and others might rightly ask. This is a very good question. Take Wal-Mart v. Dukes and the defense argument that the use of statistics to conduct Teamsters hearings would violate the defendants' right to assert individualized affirmative defenses. I wonder whether the defendant would actually be able to marshall the indivdualized proof against each individual plaintiffs' claims as they said they wanted to do. I'd like to see a court call the defendants' bluff in one of these cases and actually see if defendants have enough evidence to exercise their right to assert individualized defenses in at least a sampling of cases -- not to dispose of the whole litigation, but just to inject some realism into the proceedings. There's also a deeper issue - what is due process anyway? Is the touchstone tradition? If so, new developments in statistics and probability theory are useless to the doctrine; due process is really horse and buggy process which requires an individual hearing. Or is it about what process is due from either a participatory, accuracy or other metric? If so, there might indeed be something to talk about.
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