Elizabeth Chamblee Burch
88 Texas L. Rev. See Also 55
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.