Comment by Jack L. Johnson
Virtual representation allows a court to bind a person to a suit from which he was absent but in which he had an interest similar to that of the represented party. The doctrine thus deprives the nonparty of his individual suit. Because a lawsuit is considered a species of property, such deprivations must satisfy the fundamental fairness requirements of the Due Process Clause of the Fifth and Fourteenth Amendments. At a minimum, due process requires notice and the opportunity for meaningful participation in any suit that deprives a person of his property interest in the lawsuit. The doctrine of virtual representation potentially violates traditional rules of due process by denying nonparties their rightful day in court.
This Comment explores the doctrine of virtual representation and measures its fit within the norms of procedural fairness. To this end, the Comment investigates the origin and present-day scope of virtual representation and its counterpart, privity. The Comment then compares the doctrine to another exception to the general rule against precluding nonparties: the class action. This comparison yields the conclusion that virtual representation, as sometimes articulated and applied, infringes the constitutional rights of absentees by depriving them of their property without due process of law.
About the Author
Jack L. Johnson.
Citation
68 Tul. L. Rev. 1303 (1994)