Repose

• Pages: 171-196
• Author: Samuel Issacharoff

171

Chapter 7

REPOSE

Legal procedure is part of a complicated interaction between

what has been termed private ordering and p ublic intervention. As

we have seen throughout this book, modern society brings people

together in a varie ty of settings and inj ects an active state presence

into all manner of everyday activities. Inevitably, there are disputes,

and the purpose of a procedural system is to secure the just and

efficient resolution of those disputes. Yet, as we have also seen,

disputes do settle all around us, based on social no rms or simply on

an understanding of what is right and what is wrong, what is

contestable and what is not, without the necessity of the full

resources of the system. Still, the very fact that the full system exists

does much to induce this state of affairs. Every settlement occurs

against the backdrop, sometimes but certainly not always explicitly

invoked, of what might occur were the matter to be taken to co urt,

with all its associated costs and other demands, including the time

and disruption associated with legal proceedings. In this sense,

disputants outside the legal system are said to be bargaining “in the

shadow of the law.”

1

But the shadow of the law is not always enough to induce private

ordering of disputes, and so they arrive in court. When this happens,

three public interests arise beyond the scope of the narrow claims of

each party to satisfy his or her assertion of rights. The first is to

provide a public resolution of the issues, such that future, similarly

situated disputants may be better able to anticipate what are the

likely outcomes of their own actions should they proceed to litigation.

The second is to provide finality so that the disputants them selves

may get on with their affairs. The third is to do this while utilizing

scarce judicial resources in the most efficient manner possible.

The first public interest is addressed through the elaborate

artifact of reported decisional law. For those who brave the wilds of

litigation through to an a djudicated conclusion, the law prov ides for

written judgments that not only inform the litigants of how and why

their dispute was resolved as it was, but also inform others as to what

would likely occur were they to press their disputes to an adjudicated

resolution. In the last chapter, we shall return to the troubling

question of why anyone would be so foolhard y as to seek a full and

costly adjudication of a claim. But, for now, it suffices that decisional

1

The term comes from the classic article, Robert H. Mnookin & Lewis

Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J.

950 (1979).

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REPOSE

Ch. 7

law not only informs the litigants of the reasons for a particular

outcome, but also provides a public good to the world of prospective

litigants by informing private neg otiations of other disputes, thus

actually facilitating settlement.

As can be deduced from the title of this chapter, it is the second

public interest tha t provides an overarching theme for the material

to come: the enduring aim of achieving finality through dispute

resolution. Not only do courts provide a forum for argument and an

impartial and well-reasoned adjudication of a dispute, courts attempt

to provide closure; the object is to put a quiet end to altercations that

would otherwise con tinue indefinitely, so that life may proceed

without being consumed by festering grudges and feuds which might

reignite, even escalating into violence, at the slightest future

provocation. At a colloquial level, courts can be thought to offer us an

escape from a society of Hatfields and McCoys: rival private band s

whose conflicts are both enduring and violent. The benefit, therefore,

of a court system to society and to the litigants tha t enter it must be

measured not just by the ability of parties to have meaningful access

to it, and not simply by the just quality of adjudication that it offers,

but by the finality that can be achieved through litigation therein.

Finality may be realized in many ways. The procedural rules are

structured so as to give increasing closure to each level of

adjudication in any particular piece of litigation.

2

There are rules

that channel litigation so as to force conclusive disposition of as much

of the dispute between the litigants as possible. There are formal

doctrines of preclusion—claim preclusion, issue preclusion, and the

lesser variant of the law of the case—that foreclose relitigation of

issues or claims that were or could have been raised in the first

proceeding. And, in more recent times, the concept of “virtual

representation” ha s emerged to challenge the ability of parties not

even involved in the original lawsuit to litigate issues that were

decided there.

I. Complete Litigation

One of the animating concepts in the law of repose is the idea of

transactional completion. When suit is brought, the court looks back

in time at whateve r incident went awry that gave rise to the claims

of the action, and requires that any and all other claims arising out

of the same incident be pleaded in tandem. In the terminology of the

Federal Rules, claims are grouped according to whether they arise

2

An example here would be the limited scope of appellate review of any factual

findings of a trier of fact. This facet is not explored further.