AuthorTrammell, Alan M.

INTRODUCTION 566 I. SERIAL LITIGATION AND THE LIMITS OF PRECLUSION 570 A. Unresolved Problems of Serial Litigation 570 B. Expanding Preclusion 573 C. Retrenchment of the Day-in-Court Ideal 577 II. LHE PROBLEM OF PRECEDENT 579 A. The Mechanics of Precedent 580 B. The Collapse of Traditional Distinctions 583 1. Precedent and Preclusion Often Apply With Equal (In)flexibility 583 2. The Law-Fact Distinction Has Little Explanatory Power 586 3. The Manner of Invoking the Doctrines 592 C. The Enduring Distinctions Between Precedent and Preclusion 593 III. THEORETICAL UNDERPINNINGS OF PRECEDENT AND PRECLUSION 595 A. Two Competing Theories of Due Process 596 B. Responding to the Tension 606 C. Leveling Down and Expanding Preclusion 609 1. The Dominance of the Outcome-Oriented Theory 610 2. Expanding Nonparty Preclusion 613 CONCLUSION 616 INTRODUCTION

Imagine a scenario in which, in the long run, plaintiffs can never lose and defendants can never win. Most people probably would assume that this Kafkaesque hypothetical must violate basic norms of due process. But it is precisely in the name of due process that such a scenario arises.

Consider a relatively recent case, Taylor v. Sturgell, (1) in which one plaintiff made a Freedom of Information Act (FOIA) request for documents related to a vintage aircraft, but the government denied the request based on a FOIA exemption that protects trade secrets. The plaintiff appealed that denial in federal court but lost at every stage. (2) A second plaintiff then requested the exact same documents. The government, yet again as the defendant, sought to argue that preclusion prevented the second plaintiff from relitigating whether the documents fell under FOIA's trade-secrets exemption. But preclusion--the power to bind someone to the results of a lawsuit--generally may apply only to someone who has enjoyed a "day in court." (3) Consequently, the Supreme Court unanimously found that due process prohibited a court from binding the second plaintiff through preclusion. (4) So, he was allowed to revisit the applicability of the FOIA exemption. And he won. (5) The documents then effectively became available to the entire world, including the first plaintiff.

A similar phenomenon arises in the class certification context. If a lawyer seeks class certification but a court denies the motion, that specific decision--whether class treatment is appropriate--binds only the named plaintiffs. At that point, before a court actually certifies a class, only the named plaintiffs (rather than the members of the class that they hope to represent) are parties. (6) The lawyers and the putative class members may try again to get class certification in a different court. All they need are new named plaintiffs, and in many situations a lawyer "has available a seemingly endless string of totally fungible potential named plaintiffs." (7) Thus, the lawyers may try over and over and over until a court certifies the class. (8)

In both of these scenarios, regardless of how many times a defendant wins (either in preventing a document from being disclosed or in resisting class certification), people who did not participate in the lawsuit are not bound by the results of the earlier lawsuits. So, a new plaintiff may always come along to relitigate the same question. Notice what happens when even a single plaintiff prevails: that victory effectively nullifies all of the defendant's previous victories. If a document is finally disclosed under FOIA, that victory belongs to everyone, including plaintiffs who had previously lost. If a class is eventually certified, the plaintiffs' lawyers and the entire class of plaintiffs (minus the unsuccessful named plaintiffs from previous attempts) achieve what they wanted all along: class certification. (9) From the plaintiffs' perspective, this isn't quite a "heads I win, tails you lose" situation but more of a "heads I win, tails I get a do-over" scenario.

Although the problem of limitless serial litigation has become more urgent in recent years, attempts to combat it have run headlong into the presumption against nonparty preclusion. Preclusion rules prevent parties from revisiting matters that they have already litigated. (10) A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own "day in court." Although courts (11) and commentators (12) have suggested creative and roundabout ways to deal with serial litigation, those solutions are likely to be partial, imperfect, or infeasible. (13) The way out of the thicket, though, might have been hiding in plain sight all along.

While the Supreme Court has continued to reaffirm the "day-in-court" ideal and the overarching rule against nonparty preclusion, it has casually observed that precedent can achieve what preclusion cannot. In spare language and with no analysis, the Court has suggested that precedent, rather than preclusion, may prevent nonparties from revisiting matters that courts have already decided. (14) Return for a moment to the FOIA case, Taylor v. Sturgell, and assume that the second plaintiff had brought his claim in the same circuit as had the first plaintiff. A court could not bind the second plaintiff to the results of the first lawsuit through preclusion. Nonetheless, as the Supreme Court observed, binding precedent from the first lawsuit could achieve the same result--preventing the second plaintiff from relitigating whether FOIA's trade-secrets exemption applied to the documents in question. (15)

Does this mean that courts can solve the problem of serial litigation simply by invoking precedent instead of preclusion? Not quite. Binding precedent typically operates only within a single jurisdiction and thus can shut down multiple attempts to litigate a question only within that jurisdiction. Plaintiffs remain free to move from court to court within the federal system or between different states as they seek to relitigate certain matters, subject only to loose notions of comity among courts.

Nevertheless, juxtaposing the concepts of precedent and preclusion--and their inconsistent approaches to the "day-in-court" ideal--reveals a curious but ultimately productive conundrum. If binding a nonparty through preclusion is usually unconstitutional, why would accomplishing the same goal through stare decisis be so unobjectionable as to require no analysis? In both situations, a nonparty is bound by a lawsuit in which she had no opportunity to participate. But in only one situation may a party insist on her day in court.

Traditionally, courts and scholars have conceptualized the doctrines of precedent and preclusion as governing fundamentally different questions and operating with different force. In the usual telling, preclusion attaches only to fact-intensive determinations, and when it applies, it applies absolutely. (16) By contrast, precedent typically governs larger legal questions, and even though it can exert binding pressure in future cases, it supposedly applies with greater flexibility. (17) Indeed, as the Supreme Court has repeatedly counseled, stare decisis "is not an inexorable command." (18)

But the traditional distinctions between precedent and preclusion have largely faded and, in some instances, collapsed entirely. Increasingly, precedent and preclusion can govern the same questions and apply under the same circumstances, yet they offer diametrically opposed answers as to who is bound by the results of litigation. Although some scholars have started to document the doctrinal convergence, (19) this Article offers the first systematic analysis of the phenomenon and its surprising theoretical implications. The whole concept of binding precedent--a bedrock principle of Anglo-American legal systems--suggests that courts' unflagging insistence that each person is entitled to a day in court before preclusion may attach is misguided or even completely wrong.

The doctrinal tension between precedent and preclusion exposes a deeper and unresolved theoretical conundrum that cuts to the heart of what due process protects. In attempting to unravel that conundrum, I argue that two different visions of due process have animated the doctrines.

On the preclusion side, the Supreme Court has articulated a view of due process that vindicates participation-oriented autonomy concerns. It reflects the idea that individualized participation in a lawsuit--giving each person a day in court--serves values beyond just the desire to resolve cases accurately, including dignity and autonomy.

The precise due process theory that undergirds binding precedent is more obscure. I argue, though, that it is a fully justifiable practice, albeit one that is irreconcilable with the participation-oriented "day-in-court" ideal that features prominently in the preclusion context. Instead, binding precedent is rooted in an outcome-oriented theory of due process, a theory focused, in large part, on protecting expectations, predictability, repose, and--perhaps counterintuitively--accuracy.

The outcome-oriented theory that best explains binding precedent, in fact, dominates most areas of civil procedure. It is also the norm outside of the litigation context, particularly in the realms of administrative law and legislation. (20) Moreover, especially with respect to litigation, an outcome-oriented theory is normatively superior to a vision of due process that privileges participation for its own sake. Most critically, the outcome-oriented theory would afford courts a more capacious power to bind nonparties and thus could point the way toward solving the problem of potentially limitless serial litigation.

This Article proceeds in three Parts. Part I discusses why preclusion is uniquely suited to address problems of serial litigation but how the Supreme Court has unduly circumscribed that power. Part II illustrates the doctrinal tension between precedent and preclusion. It...

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