Cavanagh to Publish Article in The Review of Litigation

Professor Ned Cavanagh‘s article, Offensive Non-Mutual Issue Preclusion Revisited, has been accepted for publication in The Review of Litigation (Texas).

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Below is the article’s abstract:

In 1978, the Supreme Court in Parklane Hosiery Co. v. Shore held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion by a stranger to the prior litigation and that courts may permit non-mutual issue preclusion except where doing so would produce unfair results. Many state courts then followed suit, and Parklane soon became the majority view. Nevertheless, doubts about Parklane persist. Some scholars continue to argue that Parklane went too far in banishing mutuality to the scrap heap and that a rule of mutuality with a few defined exceptions is preferable to a rule of non-mutuality with a lot of fuzzy exceptions.

Parklane has led to a broader application of preclusion principles in federal litigation. However, the debate over mutuality is not merely academic and has taken on new urgency in light of the fact that since Parklane was decided, the complexion of litigation in the federal courts has changed dramatically. That, in turn, has brought about a corresponding change in attitude among judges regarding litigation management. The multiparty, multijurisdictional, multidistrict litigation that populates today’s federal dockets has grown increasingly complex. In managing complex cases, judges no longer seek to try all cases in a single, consolidated action. Rather, judges may seek to break down the litigation into smaller pieces, looking for “fast track” or “bellwether” cases that, once resolved, will lead to settlement of the remaining cases. In these circumstances, questions of issue preclusion abound.

The question explored herein is whether the rule of Parklane and its progeny remains a viable standard under the new litigation paradigm. It concludes that the changing nature of litigation in the federal system has not lessened the need for development and implementation of a coherent set of principles governing preclusion. In most areas of preclusion, a broad consensus in fact exists. Whether courts should allow offensive non-mutual issue preclusion is the only real area of debate in the preclusion field. The case by case approach articulated by the Court in Parklane strikes the proper balance between fairness and efficiency. Bright line rules might be more predictable, but the ultimate goal is to get just outcomes, not simply predictable outcomes. The answer to Professor Clermont’s question is, therefore, that we are better off with a rule of non-mutuality with a lot of fuzzy exceptions, instead of a rule of mutuality subject to a few very well-defined exceptions. The case for change has not been made, and it would be a serious mistake to turn back the clock and embrace a rule of mutuality.

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