This Note adopts a more moderate position: the Bernhard doctrine is but a minor alteration of collateral estoppel principles. It has not and will not generate the unfairness and injustice that its critics have predicted. After tracing the development of the principle of collateral estoppel from its origins in early English common law, this Note discusses some suggested justifications for the mutuality requirement and some generally accepted exceptions to its use. It then examines the growth of the Bernhard doctrine and compares how the courts have applied both the mutuality requirement and the Bernhard doctrine. Finally, the Note seeks to determine whether the dangers voiced by the Bernhard critics actually have materialized. The Note concludes that abandonment of the mutuality requirement has affected minimally the results of recent collateral estoppel cases. Its most obvious effect has been to shift the burden of proof in nonmutuality cases away from the party asserting preclusion--who no longer bears the burden of proving the applicability of some exception to the Bernhard doctrine--onto the party precluded, to show that the issue was not litigated adequately in the prior suit.This shift better serves the policy goals of collateral estoppel to put an end to litigation and to utilize most efficiently the resources of the judicial system.
William S. Byassee,
Collateral Estoppel Without Mutuality: Accepting the Bernhard Doctrine,
35 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol35/iss6/4