67 N.Y.U. L. Rev. 193 (1992)

handle is hein.journals/nylr67 and id is 207 raw text is: NEW YORK UNIVERSITY
LAW REVIEW

VOLUME 67                         MAY 1992                          NUMBER 2
RETHINKING THE DAY IN COURT IDEAL
AND NONPARTY PRECLUSION
ROBERT G. BONE*
In the American judicial system, individuals are rarely precluded from litigating a
claim or issue simply because someone else has already litigated the same matter. Em-
ryone, it is said, has a right to her own day in court In this Article, Profesor Bone
challenges this axiom and argues for a broader set of nonparty preclusion rules. He
first offers an original historical account of the development of the doctrine of virtual
representation. Although this doctrine is currently understood as allowing for the
preclusion of nonparries only when there is a close alignment of interests between the
nonparty and the person who originally litigated the matter Profesor Bone demon-
strates that the doctrine grew out of the notion that, in certain types of cases indlidu-
als have no right to participate personally at all Building on this historical account, as
well as on an analysis of different theories of participation. he articulates a new and
more coherent conceptual framework for analyzing nonparty preclusion issues. Profes-
sor Bone contends that, whether interpreted against the background of a process-ori-
ented or outcome-oriented theory of participation, the extent of a nonparty's right to
relitigate claims or issues should vary with the type of case. The Article concludes with
a discussion of the factors that are essential to the proper analysis of nonpary
preclusion.
TABLE OF CONTENTS
INTRODUCTION       ................................................         195
I.  Conceptual and Theoretical Preliminaries .................. 200
A.   The Conceptual Framework .......................... 200
B.   Participation Theories ................................ 201
C.   Nonparty Preclusion Theories ......................... 203
* Professor of Law, Boston University. B.A., 1973, Stanford University; J.D., 1978,
Harvard Law School. I am grateful to Jack Beermann, Jamie Boyle, Joe Brodley, Dick Cras-
well, Mike Harper, Steve Marks, Larry Sager, Avi Soifer, and Carl Tobias for taking the time
to read and provide helpful input on earlier drafts. I also wish to thank participants in the
Boston University Faculty Workshop for a number of valuable suggestions. Finally, I am
especially indebted to my research assistants, Lori Siegel and David Fawer, for their careful
and diligent work.
193

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