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… Continue Reading