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."