Technological Risk and Issue Preclusion: A Legal and Policy Critique

Abstract

This article presents a legal and policy analysis of issue preclusion in product liability litigation. The analysis shows that application of offensive collateral estoppel to preclude liability constitutes an abridgement of a fundamental right, and should therefore be subject to strict scrutiny. The major public policy interests of collateral estoppel to be weighed in a strict scrutiny calculus are decisional consistency and judicial economy. In fact, offensive collateral estoppel has an ambiguous causal connection with decisional consistency and may actually undermine it. Furthermore, analysis of constitutional jurisprudence shows that the fundamental right at issue may not be rationed or compromised to promote a purely economic interest. Based on these considerations, the offensive use of collateral estoppel to preclude liability does not pass the strict scrutiny test of constitutionality. Policy implications of this analysis include limitations on full faith and credit recognition and enforcement of product liability judgments across state lines.