Turning Daubert on Its Head: Efforts to Banish Hypothesis Testing in Antitrust Class Actions

Abstract

In recent cases, class action plaintiffs have sought to exclude statistical testing that can be useful for conducting the predominance inquiry required under the Federal Rules of Civil Procedure. The efforts to banish these methods are not only inconsistent with recent court decisions emphasizing the importance of rigorous analysis, but also seek to turn Daubert on its head. Statistical testing, such as the type plaintiffs have sought to exclude, is at the heart of the scientific method and is routinely used in scholarly economics empirical research.