Issue Preclusion: The Return of the Multiple Claimant Anomaly

Offensive collateral estoppel occurs when a plaintiff estops a defendant from relitigating an issue the defendant has previously litigated and lost. Although this doctrine is accepted by the Supreme Court, its application is limited to situations that would not cause unfairness to the defendant. Recently, the Supreme Court has exempted the government from the application of offensive collateral estoppel for prevailing policy reasons. The author analyzes these decisions and their underlying policies and concludes that a private defendant can fashion an argument that the application of nonmutual offensive collateral estoppel should not be allowed in the second case of a multiple claimant series, even against some private defendant.