Applying Daubert In Commercial Litigation

Virtually all credible economics, as practiced outside of the courtroom, routinely meets the test articulated in Daubert. This would seem to leave little room to argue against requiring that economics based expert testimony be tested by the Daubert factors, and most courts seem to come to this conclusion, as the citations of this draft indicate. There is, however, a contrasting view, and it is discussed here as well, infra, in the discussion of Executive Telcard in section 3.c and more extensively in the discussion of Harcross v. Tuscaloosa in the Antitrust section.
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There is a long and well-established history of regression based expert testimony in the antitrust cases. Regression and hypothesis testing are applied to determining whether an antitrust violation has taken place and also to the calculation of antitrust damages when a violation has been established.
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Statistical testing has been an element of proof in employment discrimination litigation since the appearance of the binomial model in Castaneda v. Partida, 430 U.S. 482 (1977) (concerning the race of jurors) and Hazelwood School District v. U.S, 33 U.S. 299 (1977) (concerning the race of newly hired teachers.)
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