David Marcus

88 Texas L. Rev. See Also 137

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In this piece, Professor Marcus proposes that Professor Tidmarsh’s adequacy metric would serve better as a standard than a rule.  Marcus praises the metric as a convincing and stimulating game-changer, but he also highlights a potential criticism: the adequacy requirement, foundational as it is, should not be reduced to any single test, even one as sensible as Tidmarsh’s.  To prove his point, Marcus examines two categories of cases, one for which a strict application of the “do no harm” test would preclude arguably desirable class litigation, and one for which his test would permit unattractive distributional inequities among class members.