Good Causes and Bad Science

16 Pages Posted: 21 Oct 2010 Last revised: 1 Nov 2010

See all articles by Gregory Mitchell

Gregory Mitchell

University of Virginia School of Law


Dukes v. Wal-Mart provides the Supreme Court the opportunity to resolve the tension perceived by some lower courts between Eisen and Falcon with respect to the level of scrutiny to be applied to evidence offered on class certification. Because contested expert testimony was integral to the certification decision in Dukes, the case also provides the Court the opportunity to address how expert evidence in particular should be scrutinized at the class certification stage. My goal in this essay is to explain why this subsidiary issue merits the Court's attention and why the Court should reject the superficial review of expert evidence conducted by the district court and accepted by the Ninth Circuit majority in Dukes. Lawsuits targeting systemic discrimination serve important social functions, but we should not turn a blind eye to bad science just because it is being used to advance good causes.

Keywords: experts, expert evidence, social framework, Daubert, class actions, Dukes

Suggested Citation

Mitchell, Gregory, Good Causes and Bad Science. Vanderbilt Law Review En Banc, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2010-38, Available at SSRN:

Gregory Mitchell (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-4088 (Phone)

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