Law Commons^™

Offensive Non-Mutual Issue Preclusion Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Some forty years ago, in Parklane Hosiery Co. v. Shore, the United States Supreme Court held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion for the benefit of a plaintiff who had been a stranger to the prior (F-1) litigation against a defendant who had been party to both the F-I and present (F-2) cases. In so ruling, the Supreme Court gave its imprimatur to Judge Traynor's dramatic takedown of the mutuality rule in Bernhard v. Bank of America National Trust and Savings Association nearly four decades …

The New York Court Of Appeals Visits (And Then Revisits) The Preclusive Impact Of Administrative Findings Of Fact In Subsequent State Court Actions, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The Court of Appeals decision in Auqui v. Seven Thirty One Limited Partnership, 3 N.E.3d 682 (N.Y. 2013), recognizes that administrative proceedings which take the form of “quasi-judicial” determinations may sometimes be given preclusive impact in subsequent judicial proceedings provided that the identity of issue and full and fair opportunity requirements of collateral estoppel or issue preclusion are satisfied. The decision also recognizes that administrative determinations made without the benefit of rules of evidence, pre-trial disclosure and motion practice should be given very limited affect in subsequent judicial proceedings. The fact that the Empire State’s highest court unanimously reversed itself …

When Sommers Are Winters: Do Blanks Denote Revocability?, Wendy G. Gerzog

All Faculty Scholarship

In Sommers, ruling on both parties’ motions for partial summary judgment, the Tax Court dealt with claims of issue preclusion and collateral estoppel, equitable apportionment, the completion of gifts of limited liability company interests, and retained powers that would cause estate tax inclusion.

Two aspects of Sommers held particular interest for me. The first is that the parties appear to be arguing their opponent’s conventional position. The second is that the court grappled with whether the blanks left in the gift documents were immaterial to gift completion; however, the court did not address whether the decedent’s completed gifts qualified for …

Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 2005 survey year, federal courts in the Second Circuit decided a number of important res judicata matters. Several district courts applied the doctrines of claim preclusion and issue preclusion to administrative and arbitral determinations. Several courts also expanded the “actually litigated” requirement for collateral estoppel and liberally applied the doctrine of defensive claim preclusion for counterclaims. Finally, the United States Court of Appeals for the Second Circuit issued seven res judicata decisions. In one, Vargas v. City of New York, the Second Circuit refined the standards for applying the Rooker-Feldman doctrine. This survey article will review some of …

Offensive Issue Preclusion In The Criminal Context: Two Steps Foward, One Step Back, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This article addresses whether the expansion of the doctrine of issue preclusion in the federal criminal area should mirror the expansion of the doctrine in the federal civil area. The article examines the general requirements of issue preclusion and the evolution of issue preclusion in both the civil and criminal context. Next, this article examines the current status of offensive and defensive issue preclusion when the first suit is civil and the second suit is criminal, the first suit is criminal and the second suit is civil, and where both the first and second action is criminal. The article then …

Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …

The Cult Of Finality: Rethinking Collateral Estoppel In The Postmodern Age, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

Fifty Years Of Bernhard V. Bank Of America Is Enough: Collateral Estoppel Should Require Mutuality But Res Judicata Should Not, Michael J. Waggoner

Publications

No abstract provided.

Getting A Full Bite Of The Apple: When Should The Doctrine Of Issue Preclusion Make An Administrative Or Arbitral Determination Binding In A Court Of Law?, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

In recent years, alternative means of dispute resolution have become important resources. Therefore, the question of when the determination of issues at administrative hearings and arbitrations should be granted preclusive effect in subsequent judicial litigations requires critical evaluation. Part I of this Article focuses on the general evolution of issue preclusion in New York. Part II discusses recent New York case law giving preclusive effect to administrative and arbitral issue determinations in subsequent state court proceedings. Part III analyzes the policy reasons for applying issue preclusion to administrative and arbitral issue determinations in such proceedings. Part IV concludes that the …

Collateral Estoppel - A Colorado Primer, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Perhaps no legal doctrine has been the source of so much confusion and misunderstanding as collateral estoppel. This is unfortunate since issues involving collateral estoppel arise in a large number of cases, and when properly raised are often determinative of the entire case. For the practicing attorney, it is just as important to know how to defend against an adversary's use of collateral estoppel as it is to know when and how to raise this doctrine offensively.