Plaintiff and defense lawyers tend to talk past each other a lot when discussing the legal theories underlying the class action. Plaintiffs talk of deterrence, and the need for easier certification requirements. Defendants talk about potential abuses of the device, and the need for due process. Plaintiffs prefer the "entity theory" of class actions. Defendants prefer the "joinder" theory. So to find academics on either side agreeing to anything substantive can be quite rare.

And that’s why it is notable that two law professors–from different ends of the spectrum–are now arguing that courts should look at class actions as trusts.

Professor Sergio Campos has advocated for quite some time that courts should look at class actions as trusts. His most recent statement of that argument is in Class Actions & Justiciability, forthcoming from the Florida Law Review. In that article, he argues that, for Article III standing purposes, the court should treat the class action as a trust, where the attorney may bring a claim because someone in the class will have standing. I’d largely ignored this article when it first appeared on SSRN, because it didn’t add much to my previous take on his work, and because he conceded my primary critique within the article:

Admittedly, the trust view of the class action has little to no explicit support in the law on federal class actions.

I like thought experiments as much as the next guy, but for my legal practice, I have to work with the law as it is, not the law I would like to see.


But now Professor Campos has been joined by Northwestern Professor Martin Redish, who (writing with Northwestern Law student Megan Kiernan) makes the same argument from the other side in the working paper Avoiding Death by a Thousand Cuts: The Relitigation of Class Certifictaion and the Realities of the Modern Class Action. (Longtime readers will know that one ignores Professor Redish at their peril.) Professor Redish’s primary concern is that the Supreme Court’s opinion in Smith v. Bayer Corp. leaves defendants vulnerable to serial re-litigation of the same class action. Professor Redish does not trust the courts to exercise comity consistently. (And he may have a point.)

Professor Redish believes that the best way to solve this problem is to treat the attorneys filing the cases as the real parties in interest when engaging in a preclusion analysis. (In other words, when looking at whether the parties have litigated before, the court would look at the plaintiff’s attorney rather than the plaintiff.) He specifically rejects the idea that this guardianship should extend as far as granting standing to a class action attorney, which means he opposes Campos’s primary argument, but he believes that

Viewing class attorneys as profit-driven guardians of absent class members enables the court in the second action to accurately view the attorneys who brought the first action as the real parties in interest for purposes of direct estoppel on the issue of class certifiability.

What can we take from these two different versions of the class-as-trust? I think the primary takeaway for defendants is that the largest problem courts and scholars still grapple with in class action practice is that, much like in Bill Lerach’s day, class action plaintiffs still don’t exist in any meaningful sense. Any meaningful regulation of class actions has to either beef up the role of the class plaintiff, or restrain her lawyers. And given the money lawyers still make from these cases, that’s unlikely anytime soon.