Due Process Limitations on the Application of Collateral Estoppel against Nonparties to Prior Litigation

Abstract

This article explores the nature of due process limitations on the application of collateral estoppel to nonparty litigants. Part II discusses the conventional parameters of collateral estoppel and notes the arguments favoring expansion of the preclusion rules. Part III focuses on traditional exceptions to the rule against preclusion of nonparties, and argues that most such exceptions can be explained on the ground that the nonparties in those contexts either have no interests requiring due process protection or have foregone their due process rights under historically accepted principles.

The article then discusses the nature of the process required to be given to one who may assert due process rights, and the effect of these requirements on the arguments for expansion of the preclusion rules. This discussion suggests that due process requires that persons be given an opportunity, based on principles of individual adversarial justice, to participate meaningfully in the litigation of claims affecting their interests. It also suggests that exceptions to this meaningful participation requirement should not be based on concerns with efficiency and expense reduction – two interests at the foundation of many expansion proposals. Rather, it suggests that the only interests justifying exceptions are necessity and the provision of added protection to nonparties. The article concludes that recent proposals for expansion through extending the definition of “privity” are of doubtful constitutional validity. In addition, it suggests that other proposals for expansion, such as compulsory intervention and mandatory joinder, also raise substantial due process concerns.

Keywords: collateral, estoppels, due process, individual adversarial justice, privity, mandatory joinder