Seth Nesin


The Benefits of Applying Issue Preclusion to Interlocutory Judgments in Cases That Settle

Seth Nesin

While all courts require that a judgment must be final in order to be issue preclusive, courts have diverged over what constitutes the appropriate level of finality. Courts confusingly have cited judicial economy as a reason both to extend issue preclusion to interlocutory judgments and not to extend issue preclusion to interlocutory judgments. In this Note, Seth Nesin argues that judicial economy will be enhanced by applying issue preclusion to interlocutory judgments in cases that later settle. Nesin reaches this conclusion by applying two behavioral models, and finding that each suggests that making such judgments preclusive will cause settlements to be made earlier and more frequently. Nesin then considers the impact of such a rule on judicial integrity and on fairness to litigants, and concludes that these factors do not suggest that courts should make all interlocutory judgments nonpreclusive.