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Bone, Robert G. --- "Preclusion" [2012] ELECD 101; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 13

Section Title: Preclusion

Author(s): Bone, Robert G.

Number of pages: 16

Extract:

13 Preclusion
Robert G. Bone


1. Introduction1
The law of preclusion deals with the effect of a lawsuit on future litiga-
tion. There are two types of preclusion: claim preclusion (also called "res
judicata" or "rules of merger and bar") and issue preclusion (also called
"collateral estoppel"). Claim preclusion bars a plaintiff from bringing a
second suit seeking relief for essentially the same dispute against the same
defendant. Issue preclusion prevents a party from relitigating an issue that
has already been fully and fairly litigated and determined in a previous
lawsuit.
Preclusion rules are said to promote judicial economy, repose, and deci-
sional consistency. Claim preclusion and issue preclusion achieve these
goals in different ways. The purpose of claim preclusion is to prevent a
plaintiff from splitting up a single lawsuit into separate suits. The purpose
of issue preclusion is to prevent wasteful relitigation of factual and legal
issues that have already been litigated and decided in a previous suit.
To illustrate, suppose a patient P believes she was injured by the negli-
gence of her doctor D. P sues D for negligence, and loses. Claim preclusion
bars P from suing D a second time for breach of contract (or negligence)
dealing with the same treatment. This result also holds if P wins her first
suit and wants to sue again, perhaps to obtain more damages.
Now suppose that the jury in P's first suit actually determines that D
negligently practiced medicine without adequate training, and suppose that
D ...