The adequacy requirement of Rule 23(a)(4) tends to be under-studied and under-enforced. That’s why it is always a pleasure to read new work on adequacy. Now, Professor Elizabeth Burch has published her latest discussion of the adequacy requirement: Adequately Representing Groups.
Professor Burch focuses on the standard that should apply when attacking adequacy after the fact. Nonetheless, this inquiry should inform the Rule 23(a)(4) inquiry, since one of the purposes of finding a representative adequate is to prevent subsequent collateral attacks to an aggregated judgment.
- Courts should tolerate greater conflicts in "indivisible remedy" cases.