Evidence Commons^™

Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew

Journal Articles

In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court’s lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pretrial timing. Premature rejection of expert testimony dooms budding private antitrust suits — cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court’s …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …