Collateral Estoppel Research Articles

An Empirical Study of Certain Settlement-Related Motions for Vacatur in Patent Cases

When parties jointly move to vacate otherwise proper rulings as part of a settlement agreement, district courts often oblige. While the general practice of vacating rulings to facilitate settlement has been criticized in the academic literature as depriving the public of the benefit of judicial precedents, there are hardly any empirical studies on the prevalence of this practice and its effects, particularly at the district court level where the efficiencies arising from settlement — and the resulting pressure on the court to grant vacatur — are much greater compared to the appellate level. This Article endeavors to add an empirical study to the literature on settlement-related vacatur, focusing on district courts in the specific context of patent litigation. In patent cases, the impact of vacating rulings on the public interest is most acute where the affected ruling pertains to the scope, validity, or enforceability of a patent because the cost of relitigating those issues — without the economy of collateral estoppel — may dissuade potential challenges to suspect patents or unmeritorious infringement claims. The empirical study analyzes a dataset of 79 patent cases in which settlement-related motions for vacatur were filed over a 5-year period (January 2006 to January 2011) that targeted certain rulings adverse to patentees. In those 79 cases, motions for vacatur were granted in 62 cases (78.5%), denied in 15 cases (19%), and withdrawn by the parties in 2 cases (2.5%). The data reveal that district courts appear to prioritize near-term docket management concerns when granting vacatur—even when it would undermine judicial economy and the public interest. Indeed, district courts routinely granted vacatur without providing a reasoned explanation, without regard to the litigation history of the patent or the litigiousness of the patentee, and with a degree of alacrity that would effectively prevent interested third parties from filing timely motions to intervene to oppose vacatur. Overall, the data suggest that granting settlement-related vacatur is a false economy: it leaves the judiciary vulnerable to manipulation, and burdens the public with the anticompetitive effects of weak patents.

'Domesticating' the New York Convention: the Impact of the Federal Arbitration Act

International arbitration is a world of multiple interfaces among legal orders, marked by significant tensions at specific pressure points. It is the purpose of much, if not most scholarship in international arbitration to seek to resolve such tensions. In this article the author deals with a set of pressure points that has recently been brought to the surface in a particularly comprehensive and systemic manner, in the context of the Restatement of the US Law of International Commercial Arbitration: the clash between, on the one hand, the New York Convention and thus the international model of international arbitration and, on the other hand, the basic US federal legislation on international commercial arbitration and thus the US model on international arbitration. This clash, the author shows, becomes manifest with regard to issues including: awards made in the United States but whose enforcement is nevertheless governed by the New York Convention; the preclusive effects for other courts of a court’s decision on the scope of an arbitration agreement; the common law notion of collateral estoppel (issue preclusion—preclusive effects for other courts and tribunals of factual and legal findings) as opposed to the Convention’s focus on res judicata (claim preclusion); the application of forum non conveniens in actions to enforce an award; treating interim measures as awards; and the role of state public policy as opposed to federal public policy.

Mandatory Labor Arbitration of Statutory Claims, and the Future of Fair Employment: 14 Penn Plaza V. Pyett

By its 5-4 sharply divided decision in 14 Penn Plaza v. Pyett, 556 U.S. (April 1, 2009), the United States Supreme Court dramatically endorsed mandatory labor arbitration, rather than external litigation, to resolve labor union-represented employees’ statutory claims of unlawful age-based employment discrimination. The Court summarily isolated and trivialized as jurisprudentially obsolete, but did not deem it necessary to formally overrule, 35 years of well-established precedent that had protected the employee’s right to litigate de novo statutory claims of unlawful employment discrimination, without suffering any res judicata or collateral estoppel effects from a prior adverse arbitration decision. The Court substantially clarified, and perhaps simplified, what had become an increasingly complex and potentially inconsistent panorama of decisions as to whether labor union-represented employees can be mandated to arbitrate, and thus be foreclosed from litigating de novo, statutory claims, most frequently and most classically, those alleging unlawful employment discrimination by the employer. By its controversial activist methodology, the political, ideological Court ran roughshod over stare decisis principles. A host of questions, ramifications, and unintended consequences could well transform the dynamics of arbitration well beyond the present contours of labor-union represented employment environments. This article will critically assess the salient foreseeable consequences and likely ramifications of the Pyett decision. On the eve of a half-century of Supreme Court enthusiasm for labor arbitration, grounded in the landmark Steelworkers Trilogy in 1960, the Pyett decision perhaps reached the correct result, favoring a single, globalized, omnibus arbitration, rather than second bites at the apple in serial litigation. But, the Court engaged in deeply problematic, severely truncated reasoning to reach this result. Unfortunately, Pyett is not the rare exception. The phenomenon of the Court reaching the correct result, but through badly fractured and spasmodic reasoning, while not the norm, occurs with some frequency. Pragmatically, a sound functional result from a problematic and jagged opinion undeniably is markedly superior to an elegant theory yielding an obsolete, wrong result. The great practical utility of these quintessentially Lincolnian principles is palpable in labor and employment law. Pyett is certainly not the first, and will not be the last, decision of the Court that, while not elegantly grounded in sophisticated jurisprudential metaphysics, may nevertheless work well and yield just and fair results for employees, employers, and unions who favor a single, integrated arbitration forum for the resolution of all contractual and statutory claims. Meanwhile, those employees, employers, and unions wishing to retain independent judicial recourse for litigating statutory claims are not precluded from doing so, and are left unaffected by, the Pyett decision.

Keeping Indian Claims Commission Decisions in Their Place: Assessing the Preclusive Effect of ICC in Litigation over Off-Reservation Treaty Fishing Rights

The article addresses the tension between Indian law and the litigation finality doctrines of claim preclusion and issue preclusion. We argue that some litigants and courts have improperly resolved this tension, applying preclusion too freely and thus preventing Indian tribes from pursuing valid claims. Between 1946 and 1978, many Native American tribes submitted claims against the US government to the Indian Claims Commission, a special court created by Congress to allow the tribes to seek compensation for land takings, broken treaties, and other uncompensated wrongs. In spite of the Commission's resolution of hundreds of claims and congressional appropriation of millions of dollars to pay the ICC awards, tribal claims did not end when Congress terminated the ICC in 1978. Tribes continue to pursue claims against the federal government, states, and private parties. Often, the opposing parties meet tribal claims with a preclusion defense, arguing that if a tribe received an ICC award, further claims are precluded - either by the common law doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion), or by statutory preclusion in the terms of the ICC statute itself. These arguments cannot be resolved by a simple one bite of the apple analysis. A more nuanced approach is required that looks carefully at the limited scope and purpose of the ICC process. Using the example of tribes with off-reservation treaty fishing rights, this article demonstrates the proper use of preclusion in the context of Indian Claims Commission decisions and cautions against overly-broad analysis that elevates finality over legitimate, unfulfilled tribal claims.

Abbott v. Andrx: Earlier Preliminary Injunction Rulings are Not Collateral Estoppel

<i>Abbott v. Andrx</i>: Earlier Preliminary Injunction Rulings are Not Collateral Estoppel

Attaining Greater Predictability in Patent Claim Construction

In Markman v. Westview Instruments, Inc., the United States Court of Appeals for the Federal Circuit held that claim construction was exclusively a matter of law, and that upon appeal the district court's claim construction was subject to de novo review. These holdings remain controversial, and there are many instances where claim interpretations made by trial judges have received special deference, including rulings on motions for reconsideration and motions for vacatur, the granting of collateral estoppel effect, and even appeals before some panels of the Federal Circuit. The controversy over the holdings of Markman, together with the difficulty in comprehending the complex technical matter found in many patents, and the Federal Circuit's policy against hearing interlocutory appeals, have led to a significant number of claim constructions being overturned on appeal. Many commentators have advanced proposals that would alter the way parties and courts construe patent claims. This paper explores several of these proposals, and analyzes how effective they would be in producing greater predictability for claim construction. This writer believes that the best proposal is that advanced by Joseph Miller, requiring applicants for patents to define the terms of art and technical terms that they use in their claims. This proposal could be implemented quickly and would be likely to significantly reduce the number of claim constructions reversed on appeal. This writer concludes that while Congress has made some progress toward finding a solution to the unpredictability of patent claim construction, greater steps need to be taken, and that it is not Congress, but rather the Patent and Trademark Office, that is in the best position to quickly effect these steps.

Collateral Estoppel and Claim Construction Orders: Finality Problems and Vacatur Solutions

Collateral estoppel could be a powerful tool in patent litigation. When a claim construction is necessary to a final judgment, ordinarily, an adverse party may not relitigate the construction in a future action. Current Federal Circuit jurisprudence, however, seems to offer an escape hatch. Because courts often construe patent claims before the trial begins, a party subject to an adverse claim construction could settle to try to avoid any future collateral effects. If a future court cannot determine whether the prior claim construction ruling was “final”, the court will not give the claim construction ruling collateral estoppel effect. Due to the interlocutory and changeable nature of a claim construction order, finality is always in doubt. This article suggests how a future court could find a past claim construction ruling as “final”, despite its tentative nature. A motion for vacatur necessarily determines whether a claim construction ruling is “practically final”, providing enough “finality” to support collateral estoppel in many circuits. To support this conclusion, the article explores current doctrine examining the intersection of vacatur, collateral estoppel, and interlocutory rulings, including claim construction rulings.

The Case For Restricting Access To Courts

This article examines unrecognized implications of various doctrines governing access to court. The analysis indicates that doctrines such as standing, res judicata and collateral estoppel have far reaching implications for the nature of adjudication and the basic structure of rights in society. A liberal standing doctrine causes Peremptory Adjudication, creates inalienable rights and erodes the common law doctrine against suing competitors. Inalienability of rights causes the Coase Theorem to fail and creates externalities. Furthermore, allowing suit over non-contractual pure value effects creates closed market monopolies. All these factors reduce efficiency and thereby reduce human welfare. In this sense the analysis (1) indicates the widespread enthusiasm for democratization of the courts is mistaken, and (2) provides the case for restricting access to the courts.

The U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Issue Preclusion: A Traditional Collateral Estoppel Determination

Although the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides for the “recognition” and “enforcement” of non-domestic arbitral awards in commercial disputes,1 this article will show that in order for an issue resolved through arbitration to be granted preclusive effect in subsequent litigation in the United States, the proponent must also satisfy the traditional requirements of collateral estoppel. In this way, the Convention’s reach is not quite as expansive as a party might expect, for the ensuing judicial analysis often involves complex questions of law and fact while maintaining respect for the favored status of international commercial arbitration. The result is far from per se preclusivity.

Avoiding Duplicative Litigation of Similar Claims: The Superiority of Class Action vs. Collateral Estoppel vs. Standard Claims Market

This paper focuses on situations in which numerous plaintiffs have similar, but independent claims for substantial damages against the same defendant. These cases frequently result in the prosecution of multiple separate actions and the waste legal resources in duplicative litigation. All else being equal, the legal system could achieve substantial economy by avoiding litigation of more-than-once, and instead adjudicating them once-and-for all. The paper describes the relative cost-effectiveness of three alternative means for avoiding duplicative litigation of civil actions for damages: class action, collateral estoppel and leaving the matter to the standard process for separate action driven by market forces. The class action design I consider aggregates all similar claims, regardless of whether they are pending or even accrued, on a mandatory basis, with on option for exit (opt-out) by class members. Regarding collateral, I propose and examine a regime that expands the prevailing rules by extending the benefits or detriments of final judgment in the first case to preclude both defendant and non-party plaintiffs from relitigating common questions in subsequent cases. The third regime employs market forces to reduce duplicative litigation. My central conclusions are that while, as an abstract matter, two-way collateral estoppel and class action have comparable capacity to avoid duplicative litigation, under currently governing rules and practice both alternatives entail high management costs. Courts are likely to incur more expense in managing class action. However, analysis indicates that two-way collateral estoppel fails to control duplicative litigation as effectively as class action; indeed collateral estoppel itself creates incentives for the parties to engage in unavoidable, duplicative litigation that offsets its administrative cost advantage. I also conclude that the separation process poses less of a problem of duplicative litigation than is commonly assumed. Indeed, some degree of duplicative litigation may be socially desirable. Moreover, my analysis suggests that the separate action process may prove the most cost-effective means of avoiding the residuary of inefficient duplicative litigation. Finally, I reject the general objection to two-way collateral estoppel that it systematically vests defendant's with higher stakes than plaintiffs, and thus distorts the accuracy of adjudication, undermining the ability of civil liability to minimize the sum of sum of accident costs. Asymmetrical investment incentives favoring institutional (mass production) defendants against individual plaintiffs is the baseline of the civil system as established by the standard market process Confronting a series of similar claims, the common defendant will exploit scale economies to invest at the optimal level that maximizes aggregate net benefit from litigating common questions. The investor in a single or even a large fraction of claims on the plaintiffs' side lacks the scale economies and consequent investment incentives equivalent to defendant's opportunities. This asymmetry in opportunity to exploit scale economies is eliminated by class action. Two-way collateral estoppel exacerbates the asymmetry in defendant's favor - it does not create it - but that only strengthens the case for class action to equalize plaintiffs' litigation power with that of defendant's.

Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight

Prosecutors sometimes exploit ambiguity in the evidence of a crime and assert inconsistent factual positions to different fact finders in severed trials. For example, evidence from a robbery/homicide may implicate two defendants, but not conclusively prove which one fired the single fatal bullet; in that situation, the prosecutor may argue to separate juries that each robbery defendant was the trigger man and, as the shooter of the fatal bullet, deserves the death penalty. Making these inconsistent arguments, the prosecutor may achieve success in both cases. This prosecutorial inconsistency undermines the fairness of the judicial process and may violate the due process rights of one or both of the defendants. Prosecutorial inconsistency can arise when two alleged participants in the same crime are tried separately or when a single defendant is retried for the same offense. Traditional tools for discouraging or preventing the government from asserting inconsistent positions in criminal trials are inadequate. Admitting prior inconsistent statements by the government as party admissions highlights the inconsistency for the fact finder, but does not prevent the prosecution from asserting the inconsistent position. Courts do not generally treat assertions by the government in previous trials as binding admissions. Collateral estoppel operates in criminal proceedings only when mutuality of parties is present and a particular issue on which to preclude religitation can be identified. A modified judicial estoppel is the most promising tool available to the criminal defendant to prevent prosecutorial inconsistency. The doctrine bars a party from asserting a position in one proceeding that is inconsistent with a position it successfully asserted in a prior proceeding. To be effective in the criminal context, however, limitations commonly imposed on the doctrine need to be relaxed. First, instead of requiring the court to have formally accepted the prior asserted position as a condition for estoppel in the later proceeding, success for the government consistent with its asserted position should be sufficient. Second, bad faith should not be a condition for judicial estoppel to operate, because corruption of the judicial process, not prosecutorial misconduct, is at issue. Properly applied, judicial estoppel also protects the government's interests. The prosecution can avoid a bar of a later inconsistent assertion by showing that its initial assertion was at an early stage of the proceeding when the evidence was not fully developed, that new evidence has come to light between the two proceedings or that the prior inconsistent position was rejected by the previous fact finder. Defendants convicted as a result of prosecutorial inconsistency should be afforded relief under their constitutional rights to due process. Although sounding in both improper argument and presentation of false testimony, false testimony provides the appropriate framework for evaluating due process violations from prosecutorial inconsistency. The first or second defendant should be entitled to relief if there is any reasonable likelihood that the prosecutorial inconsistency influenced the outcome of the case and there is no acceptable explanation for the change.

Prosecutorial Inconsistency, Estoppel and Due Process: Making the Prosecution Get Its Story Straight

In a surprisingly large number of criminal cases, the prosecution advances inconsistent positions on a common set of facts in separate proceedings. For example, in a number of cases where two defendants were charged with capital murder and the victim died as a result of a single gun shot, the prosecution has argued in separate proceedings that each of the two defendants fired the fatal shot. The prosecution not only argued for conviction on the basis that the particular defendant on trial shot the victim, but also, the prosecution argued for the death sentence, emphasizing the defendant's role as the shooter. Using these inconsistent arguments, the prosecution obtained convictions and death sentences for both defendants. Unfortunately, the law has no defined response to this problem. This Article argues that the prosecution should be prohibited from exploiting inconsistent positions in separate proceedings, suggesting that prosecutorial inconsistency violates the defendant's right to due process. The Article explores approaches to controlling such prosecutorial inconsistency and suggests adapting the law of party admissions, collateral estoppel and judicial estoppel to preclude the prosecution from advancing such inconsistent positions. Finally, the Article details the due process analysis the courts should apply when the inconsistency is discovered after conviction, providing relief to defendants unless the prosecution can demonstrate that there is no reasonable possibility that the inconsistent position influenced the outcome.

Unsettling Settlements: Should Stipulated Reversals Be Allowed to Trump Judgments' Collateral Estoppel Effects under Neary?

Unsettling Settlements: Should Stipulated Reversals Be Allowed to Trump Judgments' Collateral Estoppel Effects under Neary?

Under Cloak of Settlement

Lawyer abuse in class action settlements is a widely recognized problem. One approach to lawyer abuse in class actions has received insufficient attention: suing the lawyers. Lawyers involved in class actions may engage in conduct that constitutes a civil or criminal wrong under state or federal law. The difference between these lawyers and other lawyers is that judges approve class action settlements after making findings on the adequacy of class counsel, the lack of collusion between class counsel and defendants, and the fairness of the settlement terms, including lawyers' fees. We argue that this judicial approval does not, and should not, immunize lawyer misconduct from the reach of state tort law, consumer protection law, criminal law, or state or federal antitrust law. Class action lawyers seem to assume that judicial approval cloaks their settlements in protection from these actions. We argue that this assumption is erroneous. First, collateral estoppel does not apply to bar suits aimed at lawyer misconduct because there is no full and fair opportunity to litigate these issues in the fairness hearing. Second, the doctrines that exempt state action, federal regulatory activity, and petitioning the government from the antitrust laws do not apply to the conduct of class action lawyers in negotiating a settlement or to the terms of the settlement approved by the court. We provide case examples to demonstrate the types of actions that could be brought against class action lawyers.

Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases

Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases

Acquittals in Jeopardy: Criminal Collateral Estoppel and the Use of Acquitted Act Evidence

A man is tried for attempting to rob a home while using a mask and gun. In spite of the victim's positive identification, he is acquitted. Later, he is brought to trial for a bank robbery committed with a mask and gun. At the second trial, the prosecution introduces evidence of the first robbery to prove defendant's identity as the masked man.' Persuaded that the defendant is a habitual criminal, the jury convicts. The judge, taking evidence of the earlier robbery into account during sentencing, imposes a harsher sentence.2 Was this defendant tried and punished for a crime for which he had already been acquitted? If so, should the Double Jeopardy Clause protect him? These questions, long debated in the lower courts,3 were recently addressed by the Supreme Court in Dowling

Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality

Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality

The Direct and Collateral Estoppel Effects of Alternative Holdings

The Direct and Collateral Estoppel Effects of Alternative Holdings

Collateral Estoppel in Virginia after Bailey Lumber

Collateral Estoppel in Virginia after Bailey Lumber

The Proper Role of Res Judicata and Collateral Estoppel in Title VII Suits

Title VII of the Civil Rights Act of 19641 embraces an intricate and overlapping array of state and federal enforcement procedures,2 all designed to eradicate discriminatory employment practices based on race, color, religion, sex, or national origin.3 In states that have not adopted fair employment practices laws, the federal system operates alone. The complainant must first file with a federal agency, the Equal Employment Opportunity Commission (EEOC), which will investigate the charge.4 If the EEOC finds reasonable cause to believe the allegation, it may, after unsuccessfully using informal conciliation to resolve the dispute, institute enforcement proceedings in federal court.5 If the EEOC chooses not to litigate, the complainant may sue the defendant in federal court.6 In states that have enacted