The Thing Decided: Rule 1:6’s Rediscovery of Res Judicata ...

The Thing decided : rule 1 :6's Rediscovery of Res Judicata in Virginia BY THE HONORABLE D. ARTHUR KELSEY. Some jurists and lawyers find res ciples of res Judicata and applied them 217, 218 (1980) (quoting in turn Bates Judicata confusing, others outright im- to the procedural context of modern v. Devers, 214 Va. 667, 671, 202 penetrable an unnerving observa- litigation. How it does so, and why 917, 921 (1974))). tion given that the entire point of the Davis made it necessary to do so, are In contrast, claim preclusion bars doctrine is to provide predictability the two questions I take up in this es- the assertion of legal or equitable and finality to litigation. If courts ap- say. rights of action even if they were not ply the doctrine in an unpredictably specifically resolved in earlier litiga- final manner or, worse still, a predict- I. HISTORY OF RES Judicata tion. Called merger when the claim- ably non-final manner, we undermine Res Judicata traces its origin to no ant won the first suit and bar when the very reason for having it.

18/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL JUNE/JULY 2008 Some jurists and lawyers find res judicata confusing, others outright im-penetrable — an unnerving observa-

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