Exceptions to Issue Preclusion

1. Look through the exceptions to issue preclusion stated in the Restatement (Second) of Judgments

2. Was Moser really an example of a mixed question of law and fact?

3. Why do pure issues of law have no issue preclusive effect?

4. D is acquitted of resisting arrest. The gov’t subsequently sues D civilly for damages to the arresting officer. An essential element of the government's civil case is that D resisted arrest. Is the gov't issue precluded concerning D having resisted arrest?

  5. In Illinois, the plaintiff suing for negligence has burden of production and persuasion concerning his own lack of contributory negligence. P sues D for negligence and loses on ground that he could not satisfy these burdens concerning his own lack of negligence. Subsequently X (another person in the accident) sues P for negligence. Can X issue preclude P from relitigating his negligence in the accident?

  6. P sues D to recover for property damage in small claims court with a jurisdictional maximum of $500 and which operates informally without pleadings, counsel, or rules of evidence. D is found negligent. In a subsequent action by D against P for $10,000 for personal injuries arising out of the same accident, is D issue precluded concerning his own negligence?

  7. Business A sues gov’t. It determined that the widgets it imports do not have to have an import duty. Subsequently the government sues business B, where it is determined that the same type of widgets do have an import duty. The gov't then sues A to make it pay an import duty going forward. Is the government issue precluded?