Just Go Away: Representation, Due Process, and Preclusion in Class Actions
50 Pages Posted: 12 Mar 2010
Date Written: March 10, 2010
A number of commentators have argued for an expansion of the preclusion doctrines in the class action context, thereby limiting the ability to challenge a class judgment through subsequent litigation. The preclusion doctrines apply when one's interests have already been represented and litigated, and thus, as a general matter, the preclusion doctrines do not apply to non-parties; the class action is one of several limited exceptions. In this Article, I conclude that the class action exception is notably and distinctively inconsistent with the underlying construct that gives cohesion to the preclusion doctrines and their exceptions - a construct with both theoretical and practical dimensions: the foundational prerequisite of direct representation in litigation.
Keywords: class actions, preclusion doctrines, res judicata, collateral estoppel, collateral attack, absent class members, due process, federal courts, opt-in, opt-out, representation
Suggested Citation: Suggested Citation