Offensive Non-Mutual Issue Preclusion Revisited

By Cavanagh, Edward D. | The Review of Litigation, Spring 2019 | Go to article overview

Offensive Non-Mutual Issue Preclusion Revisited


Cavanagh, Edward D., The Review of Litigation


Introduction............282

I. Background.............286

A. Claim Preclusion.............289

1. Derivation.............289

2. Requirements of Claim Preclusion.............290

i. Identical Parties.............290

ii. Identical Causes of Action.............291

iii. "On the Merits".............292

B. Issue Preclusion.294

II.Issue Preclusion in Action.............295

A. The Rise of Mutuality.............295

B. The Decline of Mutuality.............301

III.Parklane in Action.............307

A. The Parklane Factors.............309

1. Proliferation of Litigation through "Wait and See".. ............309

2. Locking in Inconsistent Judgments.............310

3. Differing Stakes in F-l and F-2.............311

4. Difference in Procedural Remedies.............312

5. "Full and Fair Opportunity to Litigate".............313

B. Modern Criticism.............314

1. Asymmetry of Risks.............314

2. Probability of Error.............318

3. Efficiencies Generated by Preclusion are Illusory ............... 319

C. The Mendoza Rule: Restricting Offensive Non-mutual Issue Preclusion.............322

IV.Litigation in the Twenty-First Century and Preclusion ............325

A. The Settlement Dynamic.............327

B. Class Actions and Mandatory Joinder.............328

1. Class Actions.............329

2. Mandatory Joinder.............329

C. The Way Forward.............330

CONCLUSION.......................331

INTRODUCTION

Some forty years ago, in Parklane Hosiery Co. v. Shore,1 the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-l) litigation against a defendant who had been party to both the F-l and present (F-2) cases.2 In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association3 nearly four decades earlier. The outcome in Parklane was also foreshadowed by the Court's earlier ruling in Blonder-Tongue Laboratories v. University of Illinois Foundation 4 There, the Court rejected mutuality where the stranger to F-l invoked the F-l decision holding a patent invalid as a defense to an infringement suit in F-2 involving the same patent.5 Blonder Tongue was consistent with the trend in many state and lower federal court decisions that had abrogated mutuality where preclusion was interposed defensively.6 Parklane, of course, involved offensive non-mutual issue preclusion,7 and at the time of the Blonder Tongue decision, many courts drew a line distinguishing defensive and offensive non-mutual preclusion, allowing the former but not the latter.8 Parklane acknowledged this bright-line distinction but rejected an outright ban on offensive non-mutual issue preclusion, leaving it to the trial courts to determine on a case-by-case basis when it should be applied.9 The Court in Parklane thus stopped short of a blanket approval of offensive non-mutual issue preclusion, and qualified its holding in three important respects: (1) a defendant must have had a full and fair opportunity to litigate the case in F-l; (2) invocation of non-mutual issue preclusion must not produce an unfair result; and (3) the decision of whether or not to allow offensive nonmutual issue preclusion is left to the sound discretion of the trial court and thus is not a matter of right.10

Following Parklane, many,11 but not all,12 states have abrogated the rule of mutuality and now allowed offensive non-mutual issue preclusion. In effect, Parklane and Blonder-Tongue have shifted presumptions 180 degrees. Instead of a rule of mutuality subject to specific exceptions, we now have a rule of non-mutuality subject to exceptions where that approach would generate unfair results. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Offensive Non-Mutual Issue Preclusion Revisited
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.