Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
Diagnosis And Treatment Of The "Superiority Problem", Jay Tidmarsh
Diagnosis And Treatment Of The "Superiority Problem", Jay Tidmarsh
Journal Articles
Christine Bartholomew has provided a brilliant diagnosis of the "superiority problem" in class-action law, although I am not convinced that her plan to treat the will cure the patient. If superiority is to be eliminated, predominance must also be abandoned. Some new formula must replace Rule 23(b)(3) in its entirety. The problem of Rule 23(b)(3) is that the factors (especially superiority) give too much power to courts to get the results they want. Unless the ills that Professor Bartholomew documents are to be repeated in a new form, any replacement for Rule 23(b)(3) must be far more specific and concrete …
Rethinking Adequacy Of Representation, Jay Tidmarsh
Rethinking Adequacy Of Representation, Jay Tidmarsh
Journal Articles
This article 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, 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 …