The Brandywine Review

Commentary on American law

Courts and Procedure

Courts and Procedure

Two of civil procedure's most technical-sounding questions, what a court does when an arbitration clause is silent about class treatment and what a court does before letting an expert take the stand, have quietly become places where the law makes substantive policy while calling it interpretation. Neither move required a constitutional ruling. One came from a single line of Supreme Court cases reading a 1925 statute. The other came from fifty separate state decisions about what each state's own evidence rules mean, decisions that keep changing even inside a single state.

AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), held five to four that the Federal Arbitration Act preempts a state rule, California's Discover Bank doctrine, that treated class action waivers in consumer arbitration clauses as unconscionable. Justice Scalia's majority reasoned that forcing class procedures onto a process the FAA built for individualized resolution defeats the statute's purpose, regardless of what a state's own contract law would otherwise say about the clause. Eight years later, Lamps Plus, Inc. v. Varela, 587 U.S. 176 (2019), closed the gap Concepcion left open. Chief Justice Roberts's majority, again five to four, held that a court may not compel class arbitration based on language that is merely ambiguous about whether the parties agreed to it; because class arbitration changes the character of the process so fundamentally, ambiguity has to be read against it rather than construed under the ordinary rule that favors the non-drafting party. Justice Kagan's dissent argued the majority had displaced a neutral rule of state contract law with a federal thumb on the scale that appears nowhere in the FAA's own text.

Nothing about either holding required silence in an arbitration clause to work this way. Congress could rewrite the statute to say an ambiguous clause defaults toward class treatment, or away from it, and either choice would settle by legislation what the Court settled by interpretation. It has not, and the interpretive default the Court chose now governs on its own.

The rules for admitting expert testimony were never anchored to one federal statute the way arbitration was anchored to the FAA. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), displaced Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and its general acceptance test with a reliability inquiry under Federal Rule of Evidence 702, built around a nonexclusive list of factors, testability, peer review, a known error rate, general acceptance, that a federal trial judge weighs before an expert testifies. A state is free to keep Frye, adopt Daubert, or write its own standard, and a handful of jurisdictions, including New York, Illinois, and Washington, still apply some form of general acceptance rather than Daubert's broader reliability inquiry.

Florida shows how unsettled the choice can stay even inside one state's own courts. The legislature voted in 2013 to replace Frye with Daubert in the state's evidence code. DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018), held that the amendment was procedural and therefore an unconstitutional intrusion on the Florida Supreme Court's own exclusive rulemaking authority, reviving Frye for the state's courts. A different majority reversed course seven months later. In re Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019), adopted the same Daubert language as a rule of court rather than as a statute, over Justice Labarga's dissent that Frye better protected a jury's chance to weigh competing experts against one another and a separate dissent from Justice Luck that the majority had skipped its own procedure for adopting rules. Florida's governing standard for admitting expert testimony changed three times in six years without a single new fact about science or reliability driving any of the changes.

A quieter unsettlement sits underneath every state that already called itself a Daubert jurisdiction before December 2023. Federal Rule of Evidence 702 was amended that month to say explicitly what many federal courts had been getting wrong for years, that the proponent of expert testimony must show by a preponderance of the evidence, not merely argue plausibly, that the testimony's factual basis is sufficient and its methodology reliably applied. Texas adopted its own version of the Daubert gatekeeping factors in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), nearly three decades before that clarification and against a federal rule the 2023 amendment has since rewritten underneath it. Whether a Robinson-era factor list, articulated by a state's highest court years before the preponderance standard existed in the federal text it was borrowed from, still means what that court thought it meant is not a question any of those courts has had reason to ask, and nothing forces the question until a litigant raises it.