Abstract

http://ssrn.com/abstract=2417035
 


 



Transactionalism Costs


Alan M. Trammell


Brooklyn Law School

March 27, 2014

Virginia Law Review, Vol. 100, 2014, Forthcoming
Brooklyn Law School Legal Studies Paper No. 375

Abstract:     
Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them.

First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion and estoppel doctrines on the back end of litigation). But frequently it is neither.

I propose abandoning the transactional approach in favor of one that actually achieves transactionalism’s goals. In essence, the parties must put forward all of their claims and then, with the court, negotiate the appropriate structure of the lawsuit. Preclusion and estoppel will apply only to the claims that the parties and the court choose to include in the litigation package (and that the parties failed to plead initially). The proposal will achieve three main goals. First, it will give parties and courts true flexibility to determine the most efficient structure of their specific lawsuit. Second, it will give parties new autonomy — the power to shape preclusion and estoppel doctrines. Finally, it will offer certainty and predictability that parties never have had before — knowing exactly how broadly preclusion and estoppel will apply.

Number of Pages in PDF File: 59

Keywords: joinder, res judicata, claim preclusion, transaction or occurrence, transactionalism, pleading; Rule 13, compulsory counterclaim, complex litigation

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Date posted: April 2, 2014  

Suggested Citation

Trammell, Alan M., Transactionalism Costs (March 27, 2014). Virginia Law Review, Vol. 100, 2014, Forthcoming; Brooklyn Law School Legal Studies Paper No. 375. Available at SSRN: http://ssrn.com/abstract=2417035

Contact Information

Alan M. Trammell (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

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