Some legal scholars are concerned about the fact that there are no clear rules dictating how to properly select cases for bellwether trials. Many judges allow plaintiffs and defendants to propose possibilities, but Alexandra Lahav, who teaches at the University of Connecticut School of Law, says she is worried about this process from a systemic perspective.
“Judges should be more rigorous about bellwethers,” she says. “By letting plaintiffs and defendants pick the cases, and the bias that might be inherent in how those cases are chosen, there’s a chance that they’re going to pick cases that don’t represent the whole.”
Lahav and other critics suggest that courts should randomly select cases from a representative sample in order to eliminate possible biases.