Abstract
Claim preclusion bars parties from relitigating in a later action claims that were or should have been litigated in a prior action. How does this doctrine apply in constitutional challenges to state and federal statutes? When a plaintiff challenges one provision of a statute in one action, can she challenge a different provision of the same statute in a later action? And when, if ever, can she bring two successive challenges to the same provision?
Though the Supreme Court addressed these questions two terms ago in Whole Women’s Health v. Hellerstedt, its answers were incomplete. This Article searches for general principles guiding the Court’s decision and contextualizes them within broader theories of claim preclusion and constitutional adjudication. First, it proposes that Hellerstedt heralds a rejection of the “transactional” approach—a fact-based analysis that poorly approximates the relatedness of claims about the validity of statutory provisions. To determine what kind of rule should take its place, the Article turns to an analysis of the policies motivating claim preclusion and a theory posited by two scholars regarding the proper “phrasing” of its doctrine. Under this theory, the Article proposes, Hellerstedt establishes a narrow prima facie rule for claim preclusion in constitutional challenges to statutes: Only closely related provisions of a statute—i.e., those that impose interlocking requirements, serve similar functions, and take effect around the same time—need to be challenged together in a single action.
The Article then asks whether courts’ prevailing approach to claim-preclusion exceptions—which gives judges wide discretion to evaluate the equities in particular cases—is likewise inappropriate for constitutional challenges, where the issues are often both more abstract and more politically charged than in ordinary civil litigation. After concluding that it is, the Article proposes that courts fashion exceptions based instead on the structure of constitutional doctrine, which, the Article demonstrates, interacts with claim preclusion’s underlying policies in predictable ways. Finally, the Article argues that intervening factual developments should always give rise to a new constitutional claim against the same statutory provision—regardless of whether the prior or subsequent challenge was facial or as-applied.
Document Type
Article
Publication Date
2017
Recommended Citation
Riley T. Keenan, Identity Criris: Claim Prevlusion in Constitutional Challenges to Statutes, 20 J. Const. L. 371 (2017).
