September 2010, the Supreme Court granted certiorari in the controversial
Baycol litigation. The central question will be whether, subsequent
to a denial of class certification, preclusion can prevent an absentee
from seeking to certify another class action on a similar claim.
Professor Kevin Clermont's Essay answers that question in the affirmative,
while warning that the preclusion is very limited in scope. It
arrives at this answer by analogizing to the more established doctrine
of jurisdiction to determine no jurisdiction: if a court's finding
of no jurisdiction over the subject matter or the person can preclude,
then a finding of no authority to proceed as a class action should be
preclusive—but only on that precise issue of no authority.