The common law doctrine of issue preclusion, also known as collateral estoppel, prevents parties from relitigating an issue in subsequent lawsuits if a prior judgment already conclusively decided the issue. Issue preclusion traditionally required strict mutuality of parties; the first and second lawsuits had to involve the exact same litigants. Although the majority of jurisdictions now allow nonmutual issue preclusion, Georgia continues to enforce “identity of parties” as a necessary element of issue preclusion. Despite recently reaffirming this requirement, the Georgia Supreme Court has not thoroughly analyzed the merits of the rule.
This Note examines the evolution of issue preclusion and the mutuality element in federal and state courts, distinguishes offensive and defensive assertions of issue preclusion, contrasts Georgia with other jurisdictions, considers policy arguments, and explores why the Georgia Supreme Court has not addressed the nationwide trend towards allowing nonmutual issue preclusion. The Note argues for changing Georgia law to allow nonmutual issue preclusion in civil litigation and advises practitioners on practical avenues for achieving that goal.
Boris W. Gautier,
Reluctance Or Apathy? Examining Georgia’s Continued Adherence to a Strict Mutuality Issue Preclusion Doctrine,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol37/iss2/8