NYU Law School Professor Richard A. Epstein — "an advocate of minimal legal regulation" and "one of the most influential legal thinkers of modern times" — thinks the U.S. Supreme Court got its ruling wrong in Comcast Corp. v. Behrend, No. 11-864 (U.S. Mar. 27, 2013) (post here).
Leaving to one side the separate point that (according to a "stinging dissent by Justices Ginsburg and Breyer") "the writ of certiorari was improvidently granted because of a set of procedural wrangles on the question presented", Professor Epstein criticizes the majority's criticism of the regression analysis that estimated class-wide damages in Behrend:
No matter what regression is used, it is still the case that all the individual members of a given class will suffer somewhat different injuries that could never be picked up or measured if each person were to bring his own separate lawsuit. But in this instance, the class action offers a better vehicle for analysis because it attempts to measure aggregate social harm. That calculation in turn sets the stage for determining optimal deterrence against a defendant, by taking the total amount of antitrust injury that their actions caused and dividing it among the plaintiffs in a form that is certain not to reflect the exact injuries that each member of the class sustained. Yet at the same time, these errors do not systematically favor any identifiable class members and thus tend to cancel out. Allowing averaging across the plaintiffs, therefore, does improve the position of every member of the class, for each does far better off with a pro rata recovery than with nothing at all.