The Case for “Trial by Formula”: Leading Scholar Challenges Supreme Court’s Dismissal of Statistical Methods
The Wal-Mart v. Dukes decision has imparted a negative connotation to the phrase “Trial by Formula.” See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011). However, one rising academic star has made the case for procedures that the U.S. Supreme Court has pejoratively dismissed. See Alexandra D. Lahav, The Case for “Trial by Formula”, 90 Tex. L. Rev. 571 (2012) (available here). See also Wal-Mart v. Dukes at 2561 (“We disapprove that novel project.”).
In her article, Professor Lahav pointedly argues that the “formula” (the application of established statistical sampling methods) so derided in Dukes has several benefits, foremost the consistency that is a core principle in Anglo-American common law. See Lahav at 612-21. What Professor Lahav calls “outcome equality” is the virtually unobjectionable principle that “similar outcomes be reached in similar cases.” Id. at 596. Thus, although a call for “equality of outcomes” is frequently associated with disfavored political agendas, in this context it is merely “derivative of the duty to apply the law accurately.” Id. at 595.
Similar outcomes in similar cases is an objective that is best achieved when the claims of many are aggregated and adjudicated in a single proceeding, typically a class action. In other words, a single class action, where the parties make substantial investments in expert data analysis, and with judicial assurance that rigorous procedures are used, is intrinsically more likely to yield a legally correct outcome, that by definition will be consistent across the entire plaintiff class. By contrast, Dukes yields its own (far more inconsistent) formula, with different juries reaching different conclusions, despite applying the same laws to functionally identical facts. Paradoxically, it is often the same judges and justices who are strong advocates of res judicata — for the stated reason that consistency and finality are achieved — who support the “trial by formula” proscription, seemingly indifferent to the virtual assurance of protracted litigation and inconsistent outcomes that accompany it.
In addition to her normative argument as to the inherent equity of representative actions, Professor Lahav marshals empirical evidence of federal district courts exhibiting a pragmatic bent and finding ways to use sampling notwithstanding Dukes. See Lahav at 575. Particularly in the area of mass tort litigation, courts have focused on “resolving these cases using more efficient procedures, such as sample trials,” though not without some controversy. Id. at 575-76. Even so, the article, which is framed around the core tension between individual liberty (represented by Dukes) and equality of outcomes, argues that the jurisprudence of equality is ascendant, and that “a victory for equality in this context is good for our civil litigation system.” Id. at 577.
Alexandra Lahav, a law professor at the University of Connecticut, is a recognized class action expert and co-author of a leading casebook, Civil
Procedure: Doctrine, Practice, and Context (4th ed. 2012). She has most recently been a visiting professor at Columbia Law School and will be a visiting professor at Yale Law School for the Fall 2013 semester.