Rebalancing Fairness and Efficiency: The Offensive Use of Collateral Estoppel in § 1983 Actions

49 Pages Posted: 22 Oct 2009 Last revised: 26 Oct 2009

Date Written: October 1, 2009


Two of the American legal system’s core principles, fairness and efficiency, often come into direct conflict. The system must be fair and just to parties, but it must also necessarily focus on efficiency. In an increasingly litigious society, courts must find ways to resolve issues as quickly and as fairly as possible. To this end, the common law tradition has long held through res judicata and collateral estoppel that it is inefficient to allow a party to retry a legal claim or issue respectively, that has already been tried and decided. While these principles promote efficiency, there is also an important constraint in applying res judicata and collateral estoppel: fairness. Our society and judicial system must weigh any attempt to promote efficiency, which may deprive a party of an opportunity to litigate a claim or issue, against principles of fairness. Before a court bars a claim under res judicata or an issue under collateral estoppel, the party asserting the claim or issue must have had a full and fair opportunity to have his or her cause heard by a court of competent jurisdiction. Thus, our legal system balances these competing interests by ensuring that for every claim or issue, everyone is entitled to one day in court.

This Note deals with situations where an issue decided definitively in a criminal litigation is raised in a subsequent law suit under 42 U.S.C. § 1983. This type of situation highlights the intersection of fairness and efficiency, asking when a court should uphold a plaintiff’s use of a holding from an earlier criminal decision to bar relitigation of that issue in the civil defense of a § 1983 claim. In other words, when is offensive collateral estoppel appropriate in § 1983 actions?

This Note argues that, in situations where applying the holding of a criminal court decision promotes the overarching goals of efficiency and fairness, courts should apply collateral estoppel in order to prevent relitigation of a question of constitutionality in a subsequent § 1983 case, even though the § 1983 defendant was usually not a party to the earlier, criminal action. This Note also includes fifty state surveys of case law for state rules on collateral estoppel, whether states allow non-mutual offensive collateral estoppel, and state rules on privity.

Keywords: 1983, civil rights, collateral estoppel, civil procedure, res judicata, issue preclusion, claim preclusion, preclusion, offensive collateral estoppel, student notes, note, notes, privity, fifty state survey, virtual representation, fairness, efficiency

Suggested Citation

Segal, Joshua, Rebalancing Fairness and Efficiency: The Offensive Use of Collateral Estoppel in § 1983 Actions (October 1, 2009). Boston University Law Review, Vol. 89, p. 1305, 2009, Available at SSRN:

Joshua Segal (Contact Author)

Boston University ( email )

595 Commonwealth Avenue
Boston, MA 02215
United States

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