Dinosaurs, Claim and Issue Preclusion

Dinosaurs seem to have an eternal hold on children's (and many adults') imagination. My 5-year old twins have many dinosaur books and I have read them all to them, many times; last night my son went to sleep in dinosaur pajamas, and went off to school today with a dinosaur raincoat. In the last week, though, the Third Circuit decided a dispute over a dinosaur board game that involved the arcana of claim and issue preclusion, Hofman v. Pressman Toy Corp., 2006 WL 1876647 (3d Cir. July 7, 2006).

As the court of appeals observes, in Hofmann's first suit, 790 F.Supp. 498 (D.N.J.1990), aff'd, 947 F.2d 935 (3d Cir.1991): "Judge Debevoise granted summary judgment against , holding that she could not make out a copyright claim because there was no evidence that the defendants had access to her work. Hofmann filed four subsequent complaints in the District Court, raising the same claim ... . Each of those complaints was dismissed, and the dismissals were affirmed on appeal. " That's why the preclusion issue came to the fore. As explained by the court:


Claim preclusion and issue preclusion are related, but distinct, concepts. Whereas claim preclusion prevents a party from re-litigating claims she might have but did not assert in the first action, issue preclusion forecloses only a matter actually litigated and essential to the decision. Both claim and issue preclusion serve the same policy goals of conservation of judicial resources, fostering reliance on judicial action, and avoidance of the expense and vexation accompanying multiple lawsuits. Issue preclusion promotes the policy that “a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.

Old-timers may recall doctrines called re judicata and collateral estoppel. Those terms have been replaced by some courts, including the Supreme Court, by claim preclusion (replacing res judicata) and issue preclusion (replacing collateral estoppel). See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75 (1984). There is even an informative discussion by then Judge Ruth Bader Ginsburg, The Work of Professor Allen Delker Vestal, 70 Iowa L. Rev. 13 (1984). Dinosaurs are, however, likely to outlive any efforts to clarify the problems raised by the inherently messy nature of litigation.