Scholarship

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.