Law Commons^™

Between 'Merit Inquiry' And 'Rigorous Analysis': Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth Chamblee Burch

Scholarly Works

In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions.

Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during …

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.