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CHAPTER 28

Collateral Estoppel (Issue Preclusion)

Fine-Tuning the Preclusion Doctrine

INTRODUCTION

If law is a mysterious profession, it is partly because lawyers have such a knack for attaching intimidating names to relatively commonsense principles. Names such as “res judicata” and “collateral estoppel,” for example; handles like these are enough to intimidate any client and most lawyers. But once you rub elbows with these related doctrines for a while, they will lose their power to intimidate, and you will recognize them for what they are, essential and sensible tools of the trade.

Although they serve related functions, these two tools are different in character. Res judicata acts like a bludgeon, indiscriminately smashing all efforts of a party to relitigate events that have already been litigated and decided in a prior suit. Collateral estoppel, by contrast, operates like a scalpel, dissecting a lawsuit into its various issues and surgically removing from reconsideration any that have been properly decided in a prior action.

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