The Subjects of Litigation: Capacity to Be a Party, Litigation Capacity, and Power of Representation

Abstract

This volume asks whether the holder of a right can act validly as a party to the proceedings. The capacity to become a party, the capacity to litigate on one's own, and the authority to represent another are distinct thresholds, and the effects of cure and ratification must also be distinguished. The path to relief opens where capacity to be a party, litigation capacity, and power of representation are present or a statutory cure or ratification has been completed, and closes where a defect in the required capacity or power of representation remains so that the relevant procedural act cannot be treated as valid. The six sections address, in turn, the subject and the capacity to act, the name of the association, the acts of persons with limited capacity, the opportunity to cure defects, the temporal effect of ratification, and the end point of the identity of the subject. The strongest counterargument is as follows. Subdividing defects may exclude curable cases too early. Internal organizational approval systems and the management of informal contacts are not addressed in this volume.