A Proposal to Permit Collateral Estoppel of Nonparties Seeking Affirmative Relief
Michael A. Berch
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Arizona State Law Journal, p. 511, 1979
There must be an end to litigation. Therein lies the policy underlying the concept of res judicata. We give parties every opportunity to develop the issues and present evidence with the aim of deciding the case upon the merits. Once that opportunity has been afforded, a party should not be allowed to relitigate simply on the showing that there might be a different result the second time around. At one time only the parties to a lawsuit could be affected by the doctrine of collateral estoppel. The basis for precluding relitigation of the issue was not simply that the parties already had an opportunity to contest the issues, but also that parties should not be permitted to contradict their record. After extensive examination, however, mutuality of estoppel finally gave way to the belief that it would not necessarily be unfair to bind persons who had a full opportunity to litigate matters in the first suit. However, according to either the mutuality rule or the new doctrine, a nonparty cannot be bound by unfavorable findings. This result allegedly has its roots in due process principles of fairness. This article argues that it would not be inconsistent with due process to bind nonparties by findings of fact in certain circumstances. These circumstances basically give rise to an assurance that parties to the first litigation fully and fairly litigated the issues. This article discusses the doctrine of collateral estoppel, mutuality of estoppel, and exceptions to and the breakdown of mutuality.
Number of Pages in PDF File: 31
Keywords: collateral estoppel, civil procedure, res judicataAccepted Paper Series
Date posted: May 29, 2009
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