Document Type


Publication Date

Spring 2016


Res judicata




From historical, jurisprudential, and comparative perspectives, this Article tries to synthesize res judicata while integrating it with the rest of law. From near their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion. This core is universal not because it represents a universal value, but rather because it responds to a universal institutional need. Any justice system must have adjudicators; to be effective, their judgments must mean something with bindingness; and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment in an effort to change the outcome.

By some formulation of rules and exceptions, each justice system must and does deliver this core of res judicata. Fundamental fairness imposes some distant outer limit on res judicata, too. In between those minimal and maximal limits, context-specific policy will decide how far res judicata will go in any particular country, with huge implications for its legal system. At one extreme the United States loves preclusion, and so it goes well beyond the bare minimum. Thus far, China sticks close to the core. Perhaps for both of these prime examples, the optimum lies closer to the middle.

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