Debra Lyn Bassett (Southwestern Law School) has posted a new paper on SSRN entitled:
“Just Go Away: Representation, Due Process, and Preclusion in Class Actions“, Brigham Young University Law Review, Vol. 2009, No. 5, 2009. Here is the abstract:
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.