The Puzzling Idea of Adjudicative Representation : Lessons for Aggregate Litigation and Class Actions

Adequacy of representation is a central concept in the law of case aggregation. Yet proceduralists today, some seventy years after the germinal case of Hansberry v. Lee, still lack a clear understanding of what representation means in adjudication and why a nonparty can be bound on a representation theory. The result is normative confusion and doctrinal muddle. This Article, which is a contribution to a George Washington University Law School conference on the ALI's Principles of the Law of Aggregate Litigation, analyzes representation as a justification for case aggregation. Part I describes the puzzle of adjudicative representation. It shows that representation has no distinctive role to play in precluding absentees when outcome quality is the only goal and as a result it is possible within an outcome-based theory to justify a body of preclusion doctrine that extends well beyond current limits. Representation does have a special role to play when process-based participation is added to the mix, but the body of nonparty preclusion law it supports is so limited that even the class action has trouble fitting in. The result is a serious mismatch between justification and doctrine: outcome-based justifications go too far and process-based justifications do not go far enough. Part II then critically examines three approaches to restoring the fit between doctrine and justification, all of which in one way or another defend some version of “class action exceptionalism,” the position that the class action is uniquely suited to be a nonparty preclusion device. Part II shows why none of these three approaches work and why class action exceptionalism is flawed. Part III approaches the puzzle of adjudicative representation in a different way. It takes the mismatch between justification and doctrine as reason to rethink justification and in particular to critically examine the conventional account of the process-based day-in-court right. Part III reconstructs that right to make it a better version of what the Supreme Court actually means it to be. The result is a process-based day-in-court right that rejects class action exceptionalism and is flexible enough to accommodate some forms of case aggregation and broader nonparty preclusion. Part IV briefly sketches the implications of Part III's analysis for how to approach the issue of the proper scope of collateral attack on class settlements