Tuesday, February 2, 2010
I recently posted a response to Jay Tidmarsh's article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009) on SSRN. Although I ultimately find his recommendation troubling for the reasons I highlight below, I highly recommend his article. Here's his abstract:
This article by Jay Tidmarsh questions the usefulness of traditional tests for adequacy of representation in class action proceedings. When determining whether to certify a class, courts have sought to avoid endorsing those classes marred by conflicting interests or the possibility of collusion. Yet, Tidmarsh argues, such conflicts of interest are an intrinsic characteristic of class actions, stemming from the very policy rationales that have prompted the judiciary to allow litigation by classes.
As a result, the current doctrine of adequate representation has left the courts without a bright-line rule; instead, the courts' inquiries into adequacy of representation must focus primarily on the degree of conflicts, leading to confusion and uncertainty--indeed, were prevailing case law strictly applied, virtually no class action could survive the test for adequacy. Tidmarsh therefore proposes an alternative, bright-line rule: "Representation by class representatives and counsel is adequate if, and only if, the representation makes class members no worse off than they would have been if they had engaged in individual litigation." This rule, he believes, would afford far better protection to the interests of individual class members while simultaneously providing the judiciary with a more intelligible test that could be applied with far more consistency.
And here's the abstract from my response, titled Procedural Adequacy: