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Judgments do not bind nonparties. This core due process constraint on issue preclusion means that courts can only adjudicate questions of fact and law with respect to those individuals appearing in court. However, the operation of stare decisis routinely extinguishes the rights of nonparties without notice or an opportunity to be heard. This Article examines the due process challenge to the operation of precedent. The traditional justifications for applying a due process analysis only to preclusion and not to precedent are inadequate. Instead of excepting stare decisis from the operation of procedural due process, we should see it as meeting those requirements. Using the Supreme Court's analysis from Mathews v. Eldridge, stare decisis can survive a due process challenge based on the central value of third party reliance. While stare decisis survives in general, applying notions of procedural due process changes the traditional view of precedent in important situations. In cases where reliance is nonexistent, or where the initial process was corrupted, application of stare decisis may not withstand a due process challenge.

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Brigham Young University Law Review





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