Excerpts from Subrin et al. on Finality and Preclusion

With this reading, we start a new module on a set of doctrines called "preclusion."  Preclusion comes in two flavors.

1) Claim preclusion:  This doctrine prevents a litigant who had an obligation to assert a theory of relief in lawsuit #1 that has gone to judgment in the trial court from asserting that theory of relief in a subsequent lawsuit, lawsuit #2.  Ordinarily, the "obligation" arises from the fact that the litigant has asserted a theory of relief in lawsuit #1 related in some way (e.g., stemming from the same transaction or occurrence) to what they would like to assert in lawsuit #2.  Some refer to claim preclusion as "res judicata," but avoid this term because it is sometimes used to refer to both claim and issue preclusion jointly.  Note that claim preclusion applies regardless of whether the litigant prevailed or lost in lawsuit #1.

2) Issue preclusion:  This doctrine prevents a litigant who has litigated and lost on an issue (an "issue" is much narrower than a claim or even an element of a cause of action), almost always a factual issue, in lawsuit #1 from relitigating that issue in lawsuit #2.  Issue preclusion is sometimes called "estoppel" or "collateral estoppel."

To begin, read the following excerpts from Civil Procedure: Doctrine, Practice and Context by Subrin et al., found here (pdf).  It introduces both doctrines and provides our primary teaching case for claim preclusion.  

Note:  In my view, the court's dictum in Gonzalez on the "claim" element of claim preclusion is incorrect.  See if you can figure out why.

Finally, to invoke claim preclusion, a litigant must demonstrate the following elements

*****  Same "claim"

*****  Same party or in privity

*****  A judgment that is both (a) final, and (b) "on the merits"

*****  Certain stealth elements that no one ever mentions