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Monday, November 21, 2011

Pedagogical Experiments: A Daily Handout

In the past 3 years I have tried a pedagogical experiment in first year civil procedue that I thought I'd share, and on which I'd love feedback. The first year I taught the course I used powerpoints. I found they mmade class more static than I would like, that students fetishized them, that they prevented effective use of the blackboard, that I wanted to put more on them than was optimal, etc. 

Thereafter I created a daily handout I post as a word document the morning of the class (I usually teach at 3:20 PM) and print for those who want it in hard copy. The "handout"  that contains what I would have put on the powerpoints (along with some extras). I do this for each and every class day.  I use them in a few different ways:

(1) Because we are now doing a one semester 4 credit Civ Pro, it is devilishly hard to get everything in that I think the students should know. Therefore, I often skip "fact revelation" socratism whereby I'd try to get them to state the facts by instead summarizing the facts for them, which I tell them to "refresh themselves on" by looking at the handout. This allows me to jump pretty quickly into the core issues of the case. I can do this, in part, because I trust my fellow section profs to do more fact digging in their courses and teach students that skill.

(2) Sometimes there are passages from the opinion to which I want the students to pay particular attention. Rather than read them out loud and have them try to type them or follow in the book, I just put them on the handout and tell them to read it to themselves quickly when we get there.

(3) I use lots of my own hypos, and often give them to the students to try ahead of time. I put these in the right place on the handout.

(4) The handouts create a mini-outline for the students. The idea is that they can intersperse into the handouts their own notes from class. I often make it almost a "fill in the blank" where I will indicate an objection, that there is a reply, but not put the reply itself in the handout. The handouts thus create a structure to the course for students who might otherwise be bereft.

Here is what one of these handouts looks like after the jump as well as some tentative evaluative thoughts:

This is my handout for the day we spent on mutuality in issue preclusion (aka collateral estoppel). It begins with a main points of last time summary before getting into the meat.  Typepad will butcher the formatting a bit...it looks prettier when I do it (but still fairly utilitarian).


Handout: Class 31

Main Points From Last Time… 

  • We finished the last requirement of claim preclusion, that Case 1 and Case 2 Were Asserted by the Same Claimant (or their privy) Against the Same Defendant (or their privy, and juxtaposed the workings of claim preclusion with the compulsory counterclaim rule FRCP 13(a).
  • We then saw some of the differences between claim and issue preclusion, and under what circumstances you might be able to use one but not the other.
  • We discussed most of the requirements for issue preclusion.  Understand and be ready to apply them.  Namely:
  • (1) Case 1 must have ended in a valid final judgment on the merits.
  • (2) The issue for which you are seeking issue preclusion in Case 2 must have been actually litigated and actually decided in Case 1.  We played with variations when an issue was never raised, was raised but never determined, and complications relating to general versus specific jury verdicts.
  • (3) The issue for which you are seeking issue preclusion in Case 2 must have been necessarily decided in Case 1.  Perhaps easier to remember as being “essential” to the judgment in Case 1.  To test if something is necessarily decided, ask if changing the decision on the issue would change the judgment in the case.  If no, it was not necessarily decided.  Understand the two functional reasons for the requirement, the issue of whether the jury took it seriously and the problem that if you won judgment but lost on an issue in Case 1 you cannot appeal.
  • We briefly discussed the last requirement for issue preclusion: the issue for which you are seeking claim preclusion in case in Case 2 must be the same issue as the one in Case 1 (aka the “characterization” question).  In most cases this is straightforward, but as we saw in close cases the Restatement Second of Judgments counsels a pragmatic multi-part test. 
  • We then introduced two complications to issue preclusion regarding changes in parties, which you should master: First, because of the Due Process clause, issue preclusion can only be sought against someone who was a party (or in privity with a party) in Case 1.

2. Mutuality

  • Really two separate questions, be very careful not to confuse them.  One is simple, about whether you can use issue preclusion against a stranger in Case 1, or otherwise put against whom preclusion may be used.  Due Process clause is main constraint.  The second more complicated question is whether a stranger to Case 1 may use issue preclusion against someone involved in Case 1, so who may use issue preclusion. 

(I) Due Process and who is bound by issue prelusion:

  • Goldberg v. Kelly and other cases regarding opportunity to be heard (meaningful time & meaningful manner).  Transposed in this context means issue preclusion can only be used in Case 2 against someone who had a full and fair opportunity to litigate the issue in Case 1.  To simplify a party can only be bound by issue preclusion, if they (or their privy) were a party to Case 1.

Hypo XIV-17: Jack sues Oceanic airlines for injuries sustained in a mysterious plane crash claiming that Oceanic’s negligence caused the crash.  The case goes to trial and the jury gives a verdict for Oceanic, finding by way of a special verdict that the airline was not negligent.  Kate, a fellow passenger of Jack’s who was not a party to Jack’s suit, brings a similar suit claiming that Oceanic was negligent.  Can Oceanic claim issue preclusion against Kate on the matter of the airline’s negligence?


(II) Mutuality and who may seek to use Issue Preclusion

  • By whom (not against whom) can issue preclusion be asserted?  Not rooted in DP, so jurisdictions can differ on this issue.

Hypo XIV-18: Jack sues Oceanic airlines for injuries sustained in a mysterious plane crash claiming that Oceanic’s negligence caused the crash.  The case goes to trial and the jury gives a verdict for Jack, finding by way of a special verdict that the airline was negligent.  Kate, a fellow passenger of Jack’s in the crash, brings a suit thereafter, in which she seeks to get issue preclusion on the fact that Oceanic was negligent.  Can she?


  • For a long time the answer was no.  The general rule was that estoppel must be mutual.  That is “a judgment was binding only on parties and persons in privity with them, and a judgment could be invoked only by parties and their privies”
  • Theoretical underpinnings, stability/predictability and desirable level of litigation.
  • Mutuality begins to decline due to indemnification and vicarious liability:


Hypo XIV-19: Mad Max delivers Pizzas for Dominos.  He hits Nightrider while trying to make a delivery in less than 30 minutes. Nightrider sues Max, and Max wins a verdict after trial with a special verdict from the jury finding Max was not negligent.  Nightrider then sues Dominos on a vicarious liability theory (called “respondeat superior” when you commit a tort as part of the course of your duty).  Can dominos get preclusion on the issue of Max’s negligence?


  • If we adhered to strict rule of mutuality, no issue preclusion.  But notice what that means.  Two variations on what might happen next.  (1) In one world imagine that Dominos has to litigate Case 2, it convinces the jury that Max was not negligent, it does, and dominos wins.  Well then at least we get consistent results in Case 1 and Case 2, so we’ve wasted resources by litigating the same issue twice but at least we are consistent. (2) In the other possible world it goes the other way, the jury believes Max is negligent and Dominos loses.  Well, now we have inconsistent verdicts between Case 1 and Case 2.  What happens next.  Dominos will pay out to Montazano, and then sue Max for indemnification (call this Case 3).  If Dominos wins Case 3, Max ends up paying for an accident that according to Case 1 he did not cause.  If Dominos loses, it ends up paying for a judgment the law says is not its primary responsibility.  So either Max’s victory in Case 1 is rendered meaningless or Domino’s right to indemnification is rendered meaningless.  That is not a happy result for the system either way.
  • So, states began recognizing a narrow exception for mutuality.  When the primary actor is found not negligent in Case 1, they will let the vicariously liable party get issue preclusion on that issue. Even in states that stick to mutuality, this exception is more or less universally followed.
  • But once there was the first chink in the armor, courts started asking themselves whether they should do more than just carve out a narrow exception.  The key decision is the 1942 decision of Justice Roger Traynor, of the Cal S. Ct. in…Bernhard



Bernhard v. Bank of America Nat. Trust & Sav. Ass’n, Cal. S. Ct. 1942 [CB 1306]


Facts: Elderly Clara Sather lives with the Cooks.  She gave Mr. Cook (when joined by Dr. Zeiler, apparently her physician) authority to write checks on her behalf from her bank.  Mr. Cook writes a large check to himself and his wife from Sather’s account and deposits the money in his own account.  Sather dies.


Mr. Cook becomes the executor of Sather’s estate.  After a few years he files an accounting of Sather’s estate with the probate court (and resigns as executor).  His accounting makes no mention of the money he got transferred to he and his wife’s bank account.


Helen Bernhard and other beneficiaries object to the account for this discrepancy.  The probate court, after a hearing, settles the account, finds it kosher, and holds that the money transferred by Cook was a gift that Sather made to Cook during her lifetime.  This is Case 1:

Helen Bernhard (and others) vs. Cook, holding against Helen, it was a gift.


After Cook’s resignation, Helen becomes the administratrix of the will.  She sues the bank saying it owed the estate the amount Cook had deposited, because it was not authorized by Sather. This is Case 2.


Helen Bernhard vs. Bank

The bank makes a general denial and raises an affirmative defense that the money was a gift from Sather to Cook, and that it deserved issue preclusion on this issue Bernhard responds, you can’t get issue preclusion because no mutuality.


Holding: “No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted. The commentators are almost unanimously in accord.” [CB 1308]


With mutuality out of the way the court then goes on to see if the other requirements of issue preclusion are met.


  • Non-mutual defensive issue preclusion looks like this:


Case 1: Pl v. Def 1 (Pl loses on issue X)


Case 2: Pl v. Def 2 (Def 2, not a party to Case 1, tries to use issue preclusion to prevent relitigation of issue X)


Blonder Tongue Laboratories, Inc v. University of Illinois Foundation, S. Ct. 1971 [CB 1310]


Facts (not given in CB):

Case 1: University of Illinois v. Def 1 (Winegard Co.) claiming patent infringement of a patent owned by the University.  University loses on ground its patent was invalid.


Case 2: University of Illinois v. Def 2 (Blonder-Tongue) claiming patent infringement of a patent owned by the university, but now against a different alleged infringer.


The second defendant wants to use issue preclusion on the question of the patent’s validity. This is non-mutual (Def 2 not a party or in privity with a party in Case 1).  It is also defensive, in that Def 2 is using issue preclusion to defend against the University’s suit.


S. Ct.: Allows non-mutual defensive issue preclusion here.  Frames the question as whether it is “any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.” [CB 1310]. 


Costs to judicial system to relitigate over and over, but also costs to the parties themselves. “[D]efendant's time and money are diverted from alternative uses-productive or otherwise-to relitigation of a decided issue.”  It also expresses some concern about “the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or ‘a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’” [CB 1310]


Admission that “neither judges, the parties, nor the adversary system performs perfectly in all cases” but suggests that the requirement that the party against whom issue preclusion is sought had a full and fair opportunity to litigate is enough of a safeguard. [CB 1311]


More on what a full and fair opportunity to litigate means in Parklane


  • In offensive non-mutual collateral estoppel, a stranger to Case 1 seeks to use issue preclusion as a sword against a party who was in Case 1.  Usually it is a new Pl against a Def who was in Case 2.  It typically looks like this:

Case 1: P1 vs. D (Def loses on issue X)

Case 2:  P2 vs. D (P2 seeks to use issue preclusion to establish issue X in action against D)

Hypo XIV-20: Case 1: Jack sues Oceanic for the plane crash.  Oceanic wins a verdict, with the jury finding by special verdict that Oceanic was not negligent.  Case 2: The next day Kate, Jack’s fellow passenger, sues Oceanic.  Can Oceanic get issue preclusion against Kate on the issue of its negligence?

By contrast, Hypo XIV-21: Case 1: Jack sues Oceanic for the plane Crash.  Jack wins a verdict, with the jury finding by special verdict that Oceanic was negligent.  Case 2: The next day Kate, Jack’s fellow passenger, sues Oceanic.  Can Kate get issue preclusion against Oceanic on the finding of its negligence? 

Whether to allow non-mutual offensive issue preclusion presents very hard choices for the system designer.  Efficiency and consistency in favor of allowing it versus fairness to Def?

The U.S. S. Ct. made its choice (well, sort of) for federal law in….


Parklane Hoisery Co. v. Shore, S. Ct. 1979 [CB 1313]


Case 1: SEC v. Parklane, alleging that a proxy statement Parklane had issued was materially false and misleading.  Sought injunctive relief.  Four day trial leads to conclusion that the statement was false and misleading and entry of a declaratory judgment.

Case 2: Shore et al. v. Parklane, Class action alleging that Parklane had issued a materially false and misleading proxy statement in connection with a merger.  Sought damages, rescission of merger, recovery of costs.  Pls move for partial summary judgment against Parklane claiming issue preclusion on the issue of whether statement was materially false and misleading.  Parklane objects saying issue preclusion here would deprive them of their 7th Amendment jury trial right.

District court: Agrees, denies the partial SJ on the ground of issue preclusion 

2d Cir reverses.

S. Ct.: The issue set up is non-mutual offensive issue preclusion.  In Blonder-Tongue we approved defensive use.  Is there any valid basis for a distinction?

Not the same efficiency (judicial economy) gains in defensive and offensive?

More unfair to Def? 

Test: We will not ban the use of non-mutual offensive issue preclusion altogether, but leave it to district court to make the determination whether appropriate.  “The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.” [CB 1315]

Multiple factors as demonstrated in application to this case…(1) Could he have joined case 1? (2) Unfairness to defendant?


Part II of opinion: Does non-mutual offensive issue preclusion violate the 7th Amendment?


Obj: The argument is that if 7th Amendment preserved the right as it stood in 1791, and if in 1791, the law allowed issue preclusion only given mutuality of parties, non-mutual issue preclusion should be barred.  Reply:

Dissent (Rehnquist, J):

  • On unfairness?
  • Thinks this violates the 7th Amendment.  Much worse than SJ or JMOL.
  • Even if we assumed arguendo no 7th Amendment violation, in this case non-mutual offensive issue preclusion would still be bad because: (1) runs counter to the strong federal policy favoring jury trials even if not against the 7th Amendment itself.  (2) Jury trial really might make a difference as to the issue being precluded, i.e., they lost to a judge but might win to a jury, so unfair to give them that shot.
  • Savings in judicial economy are minimal if they exist a lot.  Real effect is on settlement behavior.


  • Effect of non-mutual issues preclusion on propensity to settle?
  • “Plaintiff shopping”

State of the law today:

  • Some States do not allow non-mutual issue preclusion at all (call them mutuality states). But to my knowledge all states still make the vicarious liability/indemnity exception.
  • Among states that do allow non-mutual issue preclusion, many bar the offensive variety while allowing the defensive variety.
  • Other states follow the federal approach: allow both non-mutual offensive and defensive issue preclusion under specified circumstances…
  • For offensive, consider whether (1) the party using issue preclusion could “easily have joined in the earlier action” (2) whether it would be unfair to defendant, in that (a) Def lacked an incentive to vigorously litigate (b) there were procedural opportunities available to the defendants in Case 2 that were unavailable to the Def in Case 1 (c) there were inconsistent judgments already on the books at the time Case 2 was litigated.

For defensive, which is less disfavored, you consider the fairness inquiry but not whether the party using issue preclusion could easily have joined.

  • The burden of showing that the Parklane factors come out his way is on the party seeking to use issue preclusion.
  • Offensive non-mutual issue preclusion will not lie against the government.  The S. Ct. says so in United States v. Mendoza. S. Ct. 1984.

Hypo XIV-22: Countess Andrenyi sues the conductor of the Orient Express in federal court for negligence causing the train to crash leading to her loss of her right arm.  The jury finds for the Countess and awards her damages.  By special verdict it finds the conductor negligent.  Poirot, another passenger, then sues and brings a second action in federal court against the conductor for the same accident.  Poirot seeks issue preclusion on the conductor’s negligence.  Can he get it?

Variation a: What if before that Colonel Arbuthnot, Princess Dragomiroff, Fraulein Schmidt, and 6 other Pls sued the conductor in individual suits and lost, with a finding of no negligence?


EVALUATION: Students have given me extermely positive feedback on these. Some students find them a bit long, and I am sympathetic, but I would rather err on the side of more rather than less. I have worried a little bit about them these handouts being shared between generations of students and stealing some of my "oomph," but so far it hasn't had that effect from what I can tell. It is the case that these handouts reduce the incentives to brief cases, but I have never been convinced that this such a great use of students' time to begin with (I often tell them to take whatever time they have set aside for my course in the week and take at least 1/3 and up to 1/2 to going over the material after class rather than prepping it before).  The modal comment I get is this just wish these were available even earlier than 5 hrs before the class.

I am curious if others have tried this sort of thing, and also to discuss the pedagogical benefits and drawbacks with anyone through the comments.

Posted by Glenn Cohen on November 21, 2011 at 01:07 PM in Civil Procedure, Teaching Law | Permalink


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I, too, use the class handouts and I have received generally favorable feedback by the students. I do not brief the cases as my handout tends to focus on more on the basic rules/analytical framework that I am trying to get them to apply to given problem scenario.

I was thinking about extending the use of my handouts to my ASP sessions each week; this is likely where I would encourage substantive briefing of the cases. My only issue is that occasionally students think that I am outlining the class, and so, if I deviate from the outline during the lecture, they complain that I am not covering the material on the handout.

Posted by: Kali Murray | Nov 25, 2011 5:47:55 PM

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