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Notre Dame Law Review

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Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a “day in court” before she is bound by preclusion but not when she is bound—regarding the exact same matter—through precedent?

The doctrinal tension exposes a deeper and unresolved theoretical conundrum that cuts to the heart of what due process protects. This Article argues that two coherent, but distinct, visions of due process underpin the doctrines. Preclusion is rooted in a participation-oriented theory that values participation as an inherent good, whereas precedent reflects an outcome-oriented theory that emphasizes accuracy and reliance interests. This Article argues that the outcome-oriented theory is already the dominant approach in most areas of civil procedure and outside of the litigation context. Moreover, it is a normatively superior approach that holds the potential to resolve enduring problems of serial litigation in which real parties in interest have multiple opportunities to litigate the same matter.



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