There’s an old joke about a physicist asked to help increase milk production at a dairy farm. He begins by assuming a spherical cow.

There’s another old joke about a group of academics stranded on a desert island with a can of food. As they try to figure out how to get the food out of the can and into their mouths, the economist argues they should assume a can opener.

Why open a blog post with two lame jokes? It’s not to demonstrate that academics shouldn’t do comedy; some physicists and economists make good comedians. It’s to point out that many academics, in their attempts to come up with accessible explanations of the world around them, wind up assuming away too much.

And that’s the problem plaguing Professor Sergio Campos’s latest paper on developing proof of classwide injury in class action litigation.  Instead of grappling with the realities of the law as it stands, and therefore offering practical advice on what constitutes classwide proof, Professor Campos tries to assume into existence a world that doesn’t exist.

Professor Campos’s argument is that the requirement that a class-action plaintiff demonstrate a common injury that can be proven with classwide evidence stems from three "fallacies" about class actions.

The first fallacy is that class actions are "all at once" procedures which require a court to resolve all issues in one fell swoop. …

The second fallacy is that the class action is an "extraordinary remedy" that, like a preliminary injunction, requires the plaintiffs to show a likelihood of success on the merits before a court can certify a class. …

The third fallacy is that, in the absence of proof of classwide injury, individual trials as to each plaintiff’s injury are required to accurately determine individual injury and prevent uninjured plaintiffs from recovering.

How is it that, in Campos’s view, so many courts could have bought into these fallacies? Well, first of all, he’s assuming fallacies where none exist. Almost no courts require that a class action resolve all issues in a single swoop. What they do–in the wake of Dukes–is define a common issue as:

of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

(Emphasis added.) Similarly, no court requires that plaintiffs show a likelihood of success on the merits before certifying a class. (In fact, despite the emphasis on rigorous inquiry, that part of the ruling in Eisen is still valid.) And–despite the Third Circuit’s ruling in Sullivan v. DB Investments–the Supreme Court’s ruling in Amchem Products v. Windsor (as well as numerous rulings rejecting overbroad classes) made clear that that if some class members were injured and others were not, a class action is not appropriate.

And how did Professor Campos get these fallacies so wrong? That comes from the fact that he is trying to explain why courts–in contravention to his own theory–treat the class action like a representation device rather than a trust device.  According to Professor Campos:

However, the class action is neither a "joinder" device nor a "representational" device. As I have argued elsewhere, the class action is a "trust" device, which becomes apparent once one examines why class actions are preferable in small claims litigation like the antitrust, securities fraud, civil RICO, and employment discrimination cases I have discussed so far."

Campos’s take on the class action as trust is an interesting one, and it would go some way to explaining a few quirks of class action doctrine, like why Rule 23 is so ready to hand control of a case over to the class attorney rather than the representative plaintiff. (There are alternative explanations, such as that some courts have misinterpreted the adequacy requirement.) But to deny that the class action is a representative device ignores–among other things–the text of Rule 23(a):

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

(Emphases added.)  And this is Professor Campos’s problem. He’s bought into the "trust" and "deterrence" arguments so far that he doesn’t just ignore the remainder of class action doctrine, he’s convinced courts must be wrong when they employ it. Deterrence and trusts are Professor Campos’s spherical cow and can opener. They explain class actions to him, but they only do so by ignoring the text of the rule and the weight of precedent.

So, why should a defense lawyer bother reading this article? Because, like it or not, these arguments do come up. Professor Campos is not stupid; and it’s worth it to see where smart people go wrong in these arguments.