That's the question asked (and answered) by Texas law professor Robert G. Bone in his paper The Misguided Search for Class Unity. In it, Professor Bone argues that there are two views of the class action: (1) an "internal, outcome-based" view that tends to favor certification for the efficiency benefits, and (2) an "external, process-based" view that tends to oppose certification based on concerns about individual participation and legitimacy. According to Professor Bone, the external view has been ascendant, particularly with recent Supreme Court decisions that require more cohesiveness in a class before certification is appropriate. He believes this is a bad thing:
Professor Bone's article is an interesting account of arguments for the class action from an admitted "internal view" scholar. And his candor about his viewpoint leads to a few interesting admissions. Among them is the fact that he (like several other scholars who write about it), think defendants' invocation of "due process" or "day in court" ideals (such as when a defendant argues that a class is not certifiable if individual litigation would lead to varied outcomes) are largely rhetorical. But even more interesting is his account of how Rule 23 looks from an "internal" perspective:
In other words, it is difficult to reconcile the "internal" view of the class action with the text of Rule 23.
The article itself is well worth a full read. But the takeaway is a fairly simple one: the "internal" or "outcome-based" (one could fairly say "result-oriented") view of the class action is not consistent with Rule 23 as it stands. When facing arguments that hinge largely on the need for aggregation or the allegedly heinous conduct of a defendant, it is always worth looking back at the actual rule governing the aggregation.
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