Taylor V. Sturgell, Procedural Due Process, and the Day-in-Court Ideal: Resolving the Virtual Representation Dilemma

INTRODUCTION The notion that the individual litigant possesses a foundational constitutional right to his day in court before his rights may be judicially altered has long served as a guide for the shaping of modern procedure. (1) In no area of procedure has this ideal traditionally played a more important role than the field of judgments. Virtually every first-year law student has learned that due process generally prevents a court from imposing either res judicata or collateral estoppel against litigants not represented in the prior litigation. (2) To be sure, there exists a narrow group of well-accepted qualifications that allow a nonparty to be bound when he is in privity with a prior party (3) and respected scholars have occasionally challenged the precept's validity. (4) However, the day-in-court limitation on the imposition of res judicata and collateral estoppel has generally withstood the test of time--that is, until the development of the doctrine of so-called "virtual representation." Virtual representation is a preclusion doctrine that permits a litigant to be bound by a judgment in a prior case in which she was not a party. (5) Unlike the other primary forms of nonparty preclusion, virtual representation (at least in some of its manifestations) does not require a preexisting legal relationship between the nonparty and a party in the case in order to bind the nonparty by the case's findings and judgment. Instead, the nonparty is bound if her interests are deemed to have been sufficiently aligned with a party in the prior case and certain other factors are satisfied, (6) even if there is no preexisting formalized relationship between them. As of the start of 2008, the definition of virtual representation varied widely among the federal circuits, with at least one circuit disapproving its use almost entirely. (7) Virtual representation is in direct tension with the day-in-court ideal. By its very nature, the doctrine deprives litigants of their right to a day in court by binding them to judgments in cases in which they were not parties and in which they did not have the opportunity to defend their own interests. Because of this tension with the day-in-court rule, virtual representation has been the subject of controversy in the lower courts since its inception. The Supreme Court provided important guidance on the viability of virtual representation in its 2008 opinion in Taylor v. Sturgell. (8) After recognizing the inherent clash between the day-in-court ideal and the doctrine of virtual representation, the Court recognized significant tension between the doctrine and the dictates of due process. (9) Specifically, it unanimously rejected the D.C. Circuit's multifactor balancing test for virtual representation. (10) In doing so, however, the Court quite clearly signaled the demise of all versions of virtual representation. For reasons we subsequently explore, (11) the Court was correct to reject virtual representation as a general matter. In most cases, the doctrine unconstitutionally undermines the individual's due process right to his day in court--a doctrine whose value has generally been ignored by those courts and scholars who have advocated some form of virtual representation. However, the Court in Taylor failed in two important ways: Initially, it failed to articulate the true constitutional grounding for the day-in-court ideal, thereby leaving itself vulnerable to the charge of some that it has overvalued this right. On the other hand, somewhat paradoxically, the Court simultaneously overvalued the day-in-court ideal, by rejecting virtual representation even in cases of indivisible relief, where the harm from failing to employ the doctrine could well outbalance the harm from using it. The concept of indivisible relief refers to cases in which the relief sought by multiple parties from the same defendant demands that the defendant take singular action--in other words, that the defendant cannot, either legally or physically, provide wholly separate, disjointed, or inconsistent relief to the various plaintiffs. …