Claim Preclusion and the Problem of Fictional Consent

56 Pages Posted: 23 Feb 2021 Last revised: 24 Feb 2022

See all articles by Lindsey Simon

Lindsey Simon

Emory University School of Law

Date Written: 2020


The doctrine of claim preclusion promotes fairness and finality by preventing parties from raising claims that already were (or could have been) raised in a prior proceeding. This strict consequence can be imposed only when the litigant received minimal due process protections in the initial proceeding, including notice and direct or indirect participation.

Modern litigation has caused a new problem. In some cases, a party may be precluded from ever raising a claim on the grounds of “fictional consent” to a prior court’s decisionmaking authority. Litigation devices have expanded the potential reach of judgments through aggregation and broad jurisdictional grants, and certain environments—such as bankruptcy—require that the parties consent to the initial court’s authority to decide a dispute. Applying claim preclusion to unraised claims in such environments poses a serious due process threat. Subsequent courts satisfy the claim preclusion standard by relying on fictional consent, i.e., by presuming that the litigant would have consented to the court’s power to decide the claim if she had brought the claim in her initial proceeding. But the litigant did not actually bring the claim, and therefore did not actually consent to the initial court’s exercise of authority.

This Article is the first to highlight the problem of claim preclusion by fictional consent. By looking to bankruptcy as a paradigmatic example, this Article concludes that precluding unraised claims on the basis of fictional consent favors finality at a perilous cost to due process. To solve this problem, this Article develops a taxonomy of claim preclusion scenarios based on different litigation contexts. The taxonomy neutralizes fictional consent and accounts for due process concerns. Reducing claim preclusion to ensure due process may give rise to opportunistic litigation tactics. This Article therefore identifies existing doctrinal tools that courts may use to reduce wasteful opportunism.

Keywords: bankruptcy, chapter 11, claim preclusion, class actions, aggregate litigation, magistrate judges, judicial estoppel, due process, jurisdiction, administrative proceedings, consent, finality, res judicata

JEL Classification: K20, K41

Suggested Citation

Simon, Lindsey, Claim Preclusion and the Problem of Fictional Consent (2020). 41 Cardozo L. Rev. 2561 (2020), Available at SSRN:

Lindsey Simon (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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