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Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018).

Preclusion and precedent restrict the permissible range of actions in future litigation. Preclusion bars parties from relitigating claims or issues that have already been adjudicated in a prior action in which the litigant was present. Precedent binds all courts and parties within a relevant jurisdiction to a particular rule or holding if the decision emerged from a court with binding authority. Alan Trammell’s new article undertakes a fresh examination of the tension between these two doctrines: why are future parties bound by precedent and stare decisis regardless of their presence in a prior action, when preclusion doctrines demand prior party presence and jealously guard an absent party’s right to a day in court?

Trammell’s take is that preclusion and precedent embody two different theories of due process. Preclusion protects a “participation-oriented theory,” in which courts are focused on guarding a party’s due process right to a “day in court.” Precedent protects an “outcome-oriented theory,” in which due process bolsters decisional accuracy and protects litigants’ rights to a stable and predictable legal environment.

Trammell frames his article around the problem of serial litigation. As a general matter, parties are not permitted to relitigate claims or issues that have already been litigated. Litigants can circumvent this bar by having a non-party to a first lawsuit bring a second action. In some cases, this has the effect of giving relief to the first party, particularly when the remedy sought is of an equitable nature and all similarly situated persons will benefit from the relief granted to the second-comer. Courts have struggled to articulate workable doctrines that do not bind absent parties to decisions in which they had no ability to argue or influence the outcome, but that also protect defendants from potentially vexatious repeat litigation.

Framing the preclusion/precedent problem as one that is primarily concerned with solving the problem of serial litigation emphasizes the disconnect between the two doctrines and allows Trammell to suggest that any plausible solution must account for a deeper understanding and application of the due process theories that underpin each doctrine, theories directed toward addressing serial litigation. It might be, however, that these doctrines do not fit neatly within the framework of problematic serial litigation. For example, one traditional justification for limiting the preclusive effect of judgments to parties while allowing precedential effect on all future parties is that each doctrine is directed at different classes of actors. The effect of preclusion is to bar future litigants from bringing a claim or relitigating an issue. But precedent does not bind parties directly, per se; rather, it binds future decision makers. Judges are bound by precedent, while parties retain more freedom. Future parties are constrained in their ability to achieve a desired outcome within the molding of existing precedent to which judges must adhere, but they are not barred from bringing the claims in the first place. This framing accounts for the fact that precedent is meant to address more than the problems that arise from serial litigation.

One of Trammell’s main contributions is to demonstrate the gap between theory and reality in this distinction. He urges the reader to look at the reality of the paralyzing and crushing weight of precedent, which becomes a de facto regulator of non-party lawsuits, justified by a due process theory inconsistent with that behind preclusion doctrines. Recognizing two distinct theories of due process better explains the doctrinal conundrum because they reflect the actual effects of each doctrine rather than the theoretical differences in scope. This observation also allows Trammell to advance a normative argument. Looking at each due process theory, he offers a convincing argument that the outcome-oriented theory of precedent is much more consistent with due process theories underlying other doctrines both in civil procedure and in the wider legal context. Applying the outcome-oriented theory to preclusion doctrines would enable courts to relax further the prohibitions on barring non-parties from effectively relitigating settled issues or claims in new lawsuits.

Trammell sees the outcome-oriented theory as dominant and the participation-oriented theory as “anomalous.” Although he makes a convincing case for the dominance of the former, he may be giving short shrift to the latter. While the participation-oriented theory is certainly less prominent, it is a stretch to characterize it as anomalous. Class actions represent the biggest example of the Supreme Court’s concern for the “day in court” theory of due process. The Court has repeatedly issued decisions celebrating the right of each current or potential class member to have his or her personal day in court. Many of the class-action structures, from notice to certification to settlement, are designed to ensure that no party is “absent” before it is bound by a settlement or judgment. Trammell’s intuition might be right to show that these decisions value a participation that is largely illusory. Beyond the fact that only a tiny fraction of absent class members will meaningfully object to or opt out of a class action, the “day in court” decisions rest on a participation theory, but result in less participation in practice. After all, many of the decisions that protect absent class members have the practical effect of weakening the class-action mechanism itself. And since many of these actions are made up of negative expected value claims, the upshot of the Court’s concern about individual participation is to reduce court access altogether.

While the participation-oriented theory might not be a true due process outlier, Trammell is correct to suggest the concern for “participation” might be another outcome-oriented theory. Trammell ends his article with a call for “leveling down,” using the outcome-oriented theory to justify an expansion of non-party preclusion. While this is an appealing doctrinal solution to the problem of serial litigation, class-action jurisprudence shows that courts might be too beholden to the participation-oriented theory in the minority of contexts where it exists—so much so that they will preserve the appearance of participation even when their decisions have quite the opposite effect.

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Cite as: Robin J. Effron, Precedent, Preclusion, and Participation, JOTWELL (November 13, 2017) (reviewing Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018)),