Agenda for 35th Class

1. Agenda for 35th Class • Supp J problems (continued) • Introduction to Collateral Estoppel • Res Judicata • Assignments for next class—Collateral Estoppel • Yeazell 749-67 • Questions to think about • Yeazell p. 750 Qs 1-3 • Yeazell p. 753 Q 2 • Yeazell p. 756 Qs 1-4 • Yeazell pp. 708ff Qs 1c, 2a&b, 5a&b • Optional. Glannon Chapters 28 and 29

2. Collateral Estoppel • Bars religitation of issue • Contrast to res judicata, which bars relitigation of claims • Often called “issue preclusion” • Policies similar to res judiciata • Save time and money • Prevent inconsistent outcomes

3. Collateral Estoppel Requirements • 1. Same issue • 2. Actually litigated. No C.E. if party admitted issue in first suit • 3. Actually decided. No C.E. if court resolved case without deciding issue • Can be hard to tell if jury verdict • 4. Necessarily decided / Essential to judgment • If changing result on issue would not change outcome of case, then no C.E. • If court decides negligence case by finding duty, but no negligence • No C.E. on duty • CE would not be fair to defendant, because could not have appealed finding of duty • If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach • Some courts follow Restatement 2nd • C.E. applies neither to “no contract” nor to “no breach” • Court may not have thought carefully about • Plaintiff may have thought appeal futile • Other courts follow 1st Restatement and apply C.E. to both

4. Nonmutual Collateral Estoppel I • Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) • Some court allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied) • Called nonmutual collateral estoppel • 2 kinds of nonmutualcolleral estoppel • Defensive • Offensive • Defensive nonmutual collateral estoppel • Plaintiff sues defendant1 for patent infringement • Court decides that patent is invalid • Plaintiff sues defendant2 for patent infringement • Defendant2 can assert collateral estoppel against plaintiff • Because plaintiff already litigated and lost on issue of patent validity • Now accepted in nearly all jurisdictions • “defensive” means asserted by defendant

5. Nonmutual Collateral Estoppel II • Offensive nonmutual collateral estoppel • Plaintiff1 sues defendant for defective dam • Court decides that defendant’s dam was defective • Plaintiff2 sues defendant for defective dam • Defendant may be estopped from arguing that dam not defective • Very controversial • If defendant loses one case (1st or 2nd or 99thcase), would mean that defendant loses all subsequent related cases • But if one plaintiff loses case, then later plaintiffs not bound by c.e • Discourages joinder • Defendant may not have had incentive to litigate hard in first case • Federal courts have discretion to apply c.e. offensively. Factors: • Has there been inconsistent litigation outcomes? • Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel • Did defendant have sufficient incentive to litigate issue aggressively in first case • “Offensive” means by plaintiff

6. Res Judicata • Frier v City of Vindalia • City towed Frier’s cars • Frier sued city in in state court seeking replevin to get cars back • City won • Frier sued city in federal court alleging Due Process violation, because city did not give him a hearing before or after it took his cars • District court found for city on merits • 7th Circuit found for city on res judicata • Note that city defended appeal on grounds that raised, but lost in district court • Since 1st judgment was rendered by IL court, need to apply IL rules for res judicata, even though 2nd case in federal court • IL rules are narrower than federal rules • “same evidence” rather than “same transaction or occurrence” • Majority and concurrence differ in application • P. 727 Q1