66 Mich. L. Rev. 1723 (1967-1968)
Res Judicata/Preclusion by Judgment: The Law Applied in Federal Courts

handle is hein.journals/mlr66 and id is 1743 raw text is: RES JUDICATA/PRECLUSION BY JUDGMENT:
Allan D. Vestal*
R ES judicata/preclusion by judgment is an important principle
of judicial administration. In both of its aspects-issue pre-
clusion (collateral estoppel) and claim preclusion (bar and merger)1
-the principle is used to achieve certain socially desirable ends.2
First, it protects litigants from harassment through the litigation
of the same claim or issue. Second, the principle helps to preserve
the prestige of the courts by avoiding inconsistent judgments; hav-
ing the same issue decided in different ways can only undermine
the general public's esteem for the legal system. A third end served
by preclusion by judgment is the saving of the courts' time by avoid-
ing repetition of litigation. If there were no such principle as pre-
clusion by judgment, some litigants might relitigate matters several
times.3 Losing plaintiffs might bring additional suits on the same
causes of action in the hope of finding a court or jury which would
decide in their favor; even winning plaintiffs might sue a second
time hoping to get larger recoveries. Parties losing on a fact issue
in one suit could relitigate the matter in any subsequent suit. With-
out a doubt, our presently overloaded courts would find themselves
swamped with additional litigation of highly questionable value.
This, it would seem, is a very important justification for the princi-
ple of preclusion of judgment.
There has been a great increase in the use of the principle of
res judicata/preclusion in the federal courts. Although it is difficult
to document a statement such as this, one who has done a great deal
0 John F. Murray Professor of Law, University of Iowa. A.B. 1943, DePauw
University; LL.B. 1949, Yale University.-Ed.
I. Res judicata/preclusion is a generic term which encompasses both claim pre-
clusion/bar and merger and issue preclusion/collateral estoppel. For examples of the
use of this terminology, see Towle v. Boeing Airplane Co., 364 F.2d 590 (8th Cir.
1966); Michigan v. Morton Salt Co., 259 F. Supp. 35 (D. Minn. 1966), aff'd
sub nor. Hardy Salt Co. v. Illinois, 877 F.2d 768 (8th Cir.), cert. denied, 389 U.S. 912
(1967); Vincent v. Peter Pan Bakers Inc., 182 Neb. 206, 153 N.W.2d 849 (1967); Clark
v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).
2. See Vestal, Rationale of Preclusion, 9 ST. Louis U.L.J. 29 (1964).
3. Examples of this desire to relitigate are easy to find and many litigants today
attempt to relitigate claims and issues even though we do have the doctrine of pre-
clusion. See, e.g., Fiumara v. Sinclair Refining Co., 385 F.2d 395 (3d Cir. 1967);
Rhodes v. Jones, 351 F.2d 884 (8th Cir. 1965), cert. denied, 383 U.S. 919 (1966); Heasley
v. United States, 348 F.2d 40 (8th Cir. 1965).
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