Elizabeth Chamblee Burch

88 Texas L. Rev. See Also 55

PDF Document

In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy.