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i. Demise of mutuality: Most courts have discarded the general doctrine of mutuality. Many courts, however, still prevent a stranger to the first action from asserting, in certain situations, collateral estoppel against a party to the first action.

B. Strangers to the first action: The rules of claim preclusion and collateral estoppel generally apply to bind only persons who were parties to the original action, not to “strangers” to that action.

1. Exceptions: But there are a few situations in which someone who was not a party to the first action is so closely linked to someone who was, that the stranger will be bound by the first result, for claim preclusion and collateral estoppel purposes, as if she had been a party. For instance, a successor in interest to property (e.g., the purchaser of real estate which has been the subject of an earlier quiet-title action), would be bound by the result in the earlier action.

C. Full Faith and Credit: The Constitutional requirement of Full Faith and Credit compels the courts of each state to give to a judgment of a sister state the same effect that that judgment would have in the state which rendered it. This requires each state to apply the same rules of merger, bar, and collateral estoppel as the state which rendered the earlier judgment would apply. A statute, 28 U.S.C. §1738, compels the federal courts to give Full Faith and Credit to the judgments of state courts.

D. Applicable only to new actions: The rules discussed in this chapter apply only to new actions subsequent to the action in which the original judgment was rendered—they do not apply to further proceedings in the same action in which the original judgment was rendered. Thus, these rules do not apply to a party who is seeking a new trial (in which he hopes the first judgment will be replaced by one of different effect), or to a party who is seeking to have the judgment reversed on appeal.

E. Rationale: The rules discussed in this chapter are based on the principle that a party who has been given one fair opportunity to litigate a claim or an issue should not be given a second chance. This principle is in turn based on two policy considerations: (1) fairness to the victor requires that he not be required to relitigate the claim or issue on which he has been victorious; and (2) judicial economy requires that litigation arising from a particular controversy not be continued indefinitely.


A. Definition: If a judgment is rendered for the plaintiff, his claim is “merged” into the judgment; that is, it is extinguished and a new claim to enforce the judgment is created. If judgment is for the defendant on the merits, the claim is extinguished and nothing new is created; plaintiff is “barred” from raising the claim again. Rest. 2d Judgments, §§18, 19; James & Hazard, p. 589. Some illustrations of the operation of merger and bar:

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