In a recent symposium article, Professor Jonah Gelbach discusses the problem that a litigant in the American adversarial system can consult multiple expert witnesses on a given question but only disclose the single most favorable opinion to the fact finder (a jury, judge, or arbitrator). He calls this the problem of “expert mining.” In particular, Gelbach considers whether a policy that requires litigants to disclose to the fact finder the number of experts that they consulted might be a satisfactory solution to the problem. Alternatively, Gelbach considers whether an even more radical change to the American litigation system—the exclusion of all expert opinions rendered after the first one—might be necessary. In doing so, Gelbach extensively discusses my own work on this problem and the third solution I developed in a 2010 article, Blind Expertise. There, I show that expert mining is one part of a broader problem of expert bias, and I propose a conditional-disclosure rule as the solution. This Essay provides some analysis of Gelbach’s framing of the problem, reviews the blinding proposal, and identifies the limits of Gelbach’s analyses.
81 U Chi L Rev Dialogue 61 [Essay PDF]
Michael H. LeRoy
When a ruling by a National Labor Relations Board (NLRB) regional director determined that Northwestern University football players who receive athletic scholarships are employees and therefore eligible to vote in a union-representation election, the multi-billion dollar enterprise known as Division I football was rocked to its foundation. In this essay Professor LeRoy argues that a “labor dispute,” as defined by the Norris-LaGuardia Act, would benefit the NCAA because it would divest federal courts of jurisdiction to hear an antitrust case. In the long run, antitrust liability poses a bigger threat to NCAA interests than does player unionization. Therefore, it is in the NCAA’s interest to: embrace the union-representation process; engage in “hard bargaining,” particularly because its bargaining strength is pitted against the weak bargaining power of college athletes; and anticipate implementing the terms and conditions of a collective bargaining agreement.
81 U Chi L Rev Dialogue 44 [Essay PDF]