Dotson v. City of Indianola Court Opinion

    pARKLANE HosrERy dffir$Xiffi, rNc., et al., petitioners,

v
LEO M. SHORE

439 US 322,58 L Ed 2d 552,99 S Ct 645

[No.77-1305]

Argued October 30, lgZB. Decided January g, 1g?9.

SI'MII{ARY

In a stockholder's class action against a corporation and certain of its
officers, directors, and stockholders, instituted in ttre United States Districi
C,ourt for the Southern District of New York, the plaintiff alleged thai the
defendants had issued. a materially false and misleiding proxy Jtatement in
violation of the securities Exchange Act of 1994 (15 u-scs $$ zajful, zgn(a),
78t(a)) pd iryp_l"eenting_regulations. Before this action ca-e ti, taat, trre
Securities and Exchange Commission instituted an injunction action against
the same defendants in the District Court, alleging thlt the proxy statement
1as m-ater-ially false -and -misleading in eesentially the same 

-respects 
as

those that had been alleged in the stockholder's action. After a nonjury trial
in the commission's action, the District court found that the proxy-etate-
ment was materially false and misleading in the respects alleged, and
entered a declaratory judgment to that effect. Thereafter,ihe plaintlf in the
etockholder's action moved_ for partial 8ummary judgmenl against the
defendants, asserting that the deiendants *e"e couatei[y esto-pped from
relitigating the issues that had been resolved against them in thi'Commis-
Bion's action. The District Court denied the motion on the ground that such
an application of collateral estoppel would violate the deflndants, Seventh
Amendment_nght to a jury trial, but the united States court of Appeals for
the Second Circuit reversed (565 F2d 8f5).

_ on certiorari, the 9"iEd states_supreme court afirmed. In an opinion by
Srrwanr, J., joined by Burcen, Ch. J., and BnpNN.e.N, Wnrm, I\,I^xgH r;,
BlacruuN, PowEr.r, and SrnvnNs, JJ., it was held that (1) [he ,";p";i
collateral 

_ 
estoppel is no longer limited by the doctrine of mutuali'ty of

parties whereby a party could not uae a prior judgment aa an esto-ppel

U.S. SUPREME COUBT REPORTS 68L&t2d

SU&IECT OF ANNOTATION
Beginning on page 988, infra

Modern status of mutr',ality of estoppel requirement for appli-
cation of doctrine of collateral estoppel in federar civil case to

stranger to prior judgment

Briefs of Counse|, p 936, infra.

i
I
I

662



58L&t2d

?etitioners, against the o, 
**f'Til'TuT9*tlyrr3;ST.?*t

tr["]""""i;X,:',f ?i""*"#"Pj].lartiql.werebounc
::i,thl,:tlr,#lf HJ.,,*lt,,r:g;"tTdir",li*H"#,:i

ursi**#iu,*ilsru,r-*;,t*[9"':*,ff, {l;twould be unfair

i#rffi#li$i[F#&]]i*;H#tqjli,rtr*_qffi
,:ilH"#',i:"dilfldff 

{jfi t}*r#,it,,*tj3*:gm,"*:,,H:
fi iffi :ras,#,,i'"'rfl gl{:q,*1:;g","trf6;fffi ,,?frTfff
fiiHffHT,T", typi.,riy -i"r1rii,i

#itrs:r#di:il,"rffiHiii*gnqfi}tr*,11ifu+",*U

#f *t;*u+,qf+ffill,gg*;1g1li;liruru'F,}r

;6,$-**=ffiHr;,$i*utrffiments_;r"ri#Jl,illll"_,:ffi4:*pr;F;##T.,f;:tlH{tf
fr i*'i"i*f, *m:n,,{tx;lgi;:}T*"r,,=:t,T,,[i:s,an,,o,he

RunNqursr, J., d.

irfr lrf, :x;*,ffi":*ittliff:q{ill*H}"-$Hi#::t
9r Jury trial obtair

l.#*rl$n[**r,rJfnr-fl*,i,',ffi
,"r."ffi '#:dgt#*t"*r"ffi*xi;i-##jlli$lt"1-l
jury trials, ana sincl;t ;:::.::f-: p the.strong federaJ

$$;;*fl $';"{[ti,,*rf iJffi +*".,#fti",{li-"r,*ffi ,-:if

1979.

nd certain of its.
tcl _States District
alleged that the

Tif,,ff}?Xij;
rme b trial, the
n action against
proxy statement
rme respecrts a.6
'-a nonjury trial
,he proxy etate_
Ls alleged, and
plaintitr in thert against the
estopped from
n the Commis_
rund that such
lants' Seventh
of Appeals for

an opinion bvt, MensHed.
the ecope of
mutuality of
r an estoppel

J:! I



U.S. SUPREME COURT REPORTS 68LEd2d

HEADNOTES

Classified to U. S. Supreme Court Digest' [,awyera'Edition

Evidence $S 396, 396; Securitiee RegU- action in a Federal District Court
lation $ 16 - violation of proxy against a corporation and certain of its
lawe - private remedy - p_rogf ofrcer€, directors, and gtockholders for

1a, 1b' In an action-I]_ "lt:q*:i"J:' alleged vioration of the proxy provisions
tion o!!he proxy provirsio.l.,,of,ll",Xt or trr" Securities Exchange ici of lg3a
rities Exchange Act of 1934 (fb USGS ;.
$$ ?8j(b), 78n(a), 78t{"ii jii=r,lir"ilii (15 UScs $$ 78j(b)' 78n(a)', 78(a)) and

ing regutatio*, " 
priritJ;i"il'ifr;; implementing regulations, the defen-

""iitf"}-t" 
retilf iimply-bfi;;;;;i- dants are precluded, under the plaintifs

i"g i-rirt it " 
pro*i 

"oficitation 
was mate ofensive uee of the collateral estoppel

iiitti i"t"" aira misteaaing; the plaintiff doctrine, from relitigating the issue of
m,re[ abo ehow that he was injured and the material falsity and misleading na-
prove damages.

Judgment $ 168 - collatcral eetoppel

- judguent in SBC action - ef'
fect in private action

2a. 2b, 2c. ln a stockholder'e class

ture of the proxy atatement, which issue
had been resolved adversely to the defen-
dants at an earlier trial, without a jury,
in the District Court in i4junction
proceedings against the defendants

i
I
I
I

TOTAL CLIENT€ERVICE LIBRARYO REFERENCF,S

47 Am Jur 2d, Judgrnents $$ 52G523; 47 Am Jur 2d, Jury
$$ 29 et seq.

14 Federal Procedural Forms L Ed, Securities and Commodi-
ties Regulation $$ 59:1 et seq.

22 Am Jur Pl & Pr Forms (Rev), Securities Regulation, Form
4

USCS, Constitution, 7th Amendment
US L Ed Digest, Judgment $ 158; Jury $ 22

ALR Digests, Judgment $ 128; JurY $ 45

L &l Index to Annos, C,ollateral Estoppel Doctrine; Judgment;
Jury; Securities Regulation

ALR Quick Index, Collateral Estoppel Doctrine; Jury
Jury Trial; Securities Regulation

Federal Quick Index, Collateral Estoppel; Jury and
Trial; Securities Regulation

and

Jury

ANNOTATION REFERENCES

Supreme Court'g construction of Seventh Amendment's guaranty of right to trial
by jury. 40 L Ed 2d 846.

Proxiee provision of $ 14 of Federal securitiee Exchange Act (15 USCS S 78n). 12

LM Zd 1235; 56 ALR2d 1126.

Mutuality of eetoppel as prerequisite of availability of doctrine of collateral
eatoppel to a stranger to the judgment' 3l ALRSd 1044.

civit action by private pereon under $ 10G) of securities Exchange Act of 1934

(15 USCS $ 78j(b)t. 37 ALR2d 649.

5U



58LEd2d

District Court
nd certain of its
gtockholders for
proxy provisions
nge Act of l9B4
r(a), 78(a)) and
rrrsr the defen-
ler the plaintifs
llateral estoppel
ng the issue of

misleading na-
ent, which issue
ely to the defen-
without a jury,
in injunction

he defendants

;t
., Jury I

nmodi- |

Form I

I

ment; I

rand I

Jurv I

,, .:,", I

s zenr rz I

,ott"t".O I

r or rgsa I

PARKLANE HOSIERY CO. v SHORE
439 US 322,58 L Ed 2d 552,99 S Ct 645

brought by the Securities and Exchange doctrine of res judicata, has the dualcommission based on eesentiartT; purpose of protecting ritigants from thesame atlegations as to the proxv'state ilu";;;;:;irE;il, an identicar is'uement, where 0) the plaintitr probablv with th.e samei;; or his privy and ofcould not have ioined' in the a;;#- promoting :uaiciai-L"orro.y by prevenr_eion's action "*,, ir t"-iiJ'L-aJi"li, ,r,, needless ritigation.
1n! tZ) there was no unfairness-; th;
defendants in applying ,fl;;il ""I"t- Judgment $ z? - couaterar eetoppereral eetoppel, since tat in tight ;i il" _ mutualitv
serious allesations made in tr," cornrni"l . ? Th;;;[ Jf coilateral estoppel bysion's complaint against th" d;f;;a;;, j_rac*"ri;;r"i;ser rimited by theas well as the foreseeability or ,ruro "dd;i"";f;rt".'tity 

or parties wherebyquent private suits that tvpi;ary foii;; a partv could not uL " prio, judgmenta euccessfur government juagm"nt, ilre as."n gsqpper against the other partydefendants had every i""""tl""- to ud ynJ"." b",f ;;il were bound by thegate the Commissiont lawsuit fufiy ani judgment.
vig. orously, (b) the judgment i; iil"co;: - 

/see annotation p 9J8, infralmuslon'E action was not inconsistent
with anv previous dpcision, 

";e G[h;;; constitutionat [,aw $ zsr _ due proc-would not be availabre to ttre deienJanG e'a - efiect of judguentin the stockholder's, action ;y ;;; - 0",6t rfi=;';;i;tion of due processdural opporrunities that were rin";;ii;- r* i jya*}i;; binding on a riti-ble to them in the com-Gilnt;;;; gant who-w* ,rot a party nor a privyand that would be of a .find that ;dil irrd the.efor" n"" ,rJr". had an opporru-be.likely to cause a different ;;ilEi; nity to be heard.being immateriat that til i;i""d;;
would have been entitled to a iury-triJ Judgnent $ g0 

- collateral estoppel
in tlre stockholder's action on irre"i"";;; ro"tri"" - arrJ*rr",.".bearing on whether the proiy ilt"*;;; z. Derensire ui- of' cottateral eetoppelwas materially false. and m-isreading if -whereby ,-pr"i"tfi rs estopped fromthe Commission's action naa ne""iuLi asserting-" crii_ irr"t the plaintiff hasbrought, eince^the preeence or absence oi previousiy riiig"t"i'""a loet againet an-I jury ae factfinder is basicaily ""rti.t, 6tr,". a"r"ni.'l1rpi""ruaes a praintiffunlike, for exampre. the necee;ilt; d* ffi. ,"rft!ii", ",0"""r,*r issue' byfending the firet'raws"it in an-i"";;; merery switching adversaries.

i#*t,ffil:iailf;h"0'i"t, J, 
-d-i;;* - &" *ioLlii p esa, inrra]

[*e annotation p gJ8, infral JulilS4ent g E0 - eetoppel efiect
Judguent $$ z-e, 8r, 

.s2, .8e --res judi- 
",:il;il; ?l1trff"ftffi ,oi;"tlffi

cata - collateral estoppel -?y sometimes justify not allowing a3a, 3b. under the doctrine of res j,rri- prior judgm;;#;; estopper effect incata, a judgment on the.pe.rits in a irioi i s"u'seq"ue";- ,"iioi'L""n between theeuit bars a second suit 
. 
invoivi"g- tt " same parties, or where defensive co[at_same parties or their privies bas;d on erar. estoppet't"-#;t by a defendantthe eame cauee of action;.r"d;;th; d;: against 

" iri.irrtin *il rr"" litigated andtrine of collaterar eetoppel, o" trr" otrr"i i_;1 i" * 
""iii"i-""iiJn ug"ir,rt anotherhand, the e€cond action'is uporr. aiii"i- iefendant.e-nt cause of action and the juagme"i i"

ll_"_ ldoT euit .preclud"r ""iiiii"iion Li Judgment g 80 - collatcrar estopperrssues actually litigated and nec-easary to doctrini _ otrerrsive usethe outcome of the first action. g. with 
""c.Jt" 

.tI" 
offeneive uee of

rudgment- $76 - ree judicata _ cor. *,fl*i1ffIrj;*::fiJ";":iffi:,Ilateral estoppel - pur?ose ing the issues which the defendant has4' collateral eatoppel, like the related freviously litigated and lost in an action

555



with another party-in the federal
courts, the trial courts have broad dis-
cretion to determine when it should be
applied; the general rule should be that
a trial judge should not allow the use of
ofensive collateral estoppel where a
plaintif could easily have joined in the
earlier action, or where the application
of offensive estoppel would be unfair to a
defendant, such as where (1) the defen-
dant was sued for small or nominal dam'
ages in the first action and thus had
little incentive to defend vigorously (par-
ticularly if future euits were not foresee'
able), (2) the judgment relied uPon as a
basis for the estoppel was itself inconsist-
ent with one or more previous judgments
in favor of the defendant, or (3) the
second action aforded the defendant pre
cedural opportunitiee unavailable in the
first action that could readily cause a
different result.

[fu annotation P 938, infra]

Jury $ 22 - collatcrd eetoPPel -judgment in SEC action - effect
in private action

10a, 10b. In a stockholder's class ac-
tion in a Federal District Court against a
corporation and certain of its omcers,
directors, and stockholders for alleged
violation of the proxy provisions of the
Securities Exchange Act of 1934 (15

USCS $S 78jG), 78n(a), 78(a)) and imple
menting regulations, the defendants'
Seventh Amendment right to a jury trial
is not violated by the plaintifs ofensive
use of the collateral estoppel doctrine to
preclude the defendants from relitigat-
ing before a jury the issue of the mate'

Respondent brought this stockholder's
class action in the District Court for
damages and other relief against pe.
titioners, a corporation, its ofEcers, direc'
tors, and stockholders, who allegedly had
issued a materially false and mieleading
proxy statement in violation of the fed-
eral securities laws and Securities and
Exchange Commission (SEC) regrrlations'
Before the action came to trial the SEC
sued the same defendants in the District

556

U.S. SUPREME COURT REPORTS 58LEd2d

rial falsity and misleading nature of the
proxy statement, which iesue had been
reeolved adversely to the defendants at
an earlier trial, without a jury, in the
District Court in injunction proceedings
against the defendants brought by the
Securities and Exchange C,ommission
based on essentially the same allegations
as to the proxy statement; even though
under the common law as it existed in
1791 collateral estoppel was permitted
only where there was mutuality of par-
tiea, nevertheless the subsequent devel-
opments in the law of collateral estoppel,
like the law in other procedural areas
defining the scope of the jury'a function,
are not repugnant to the Seventh
Amendment simply because they did not
exist in 1791. (Rehnquist, J., disgent€d
from this holding.)

Jury 52 purporc of Seventh
Amendment

11. The thrust of the Seventh Amend-
ment is to preserve the right to jury
trial as it existed in 1791.

Jurl' $$ 1.3, 14 - falee prorY state
ment - action by SEC - advie'
ory jury

l2a, L2b. In an equitable injunctive
action brought by the Securities and
Exchange Commission against a corpora-
tion and certain of its officers, directora,
and stockholders for alleged violation of
the proxy provisions of federal laws, the
defendants do not have a right to a jury
trial; an advisory jury in such an action
does not constitute a Seventh Amend-
ment jury.

SYLLABUS BY REPORTER OF DECISIONS

Court alleging that the proxy stat€ment
was materially falee and misleading in
eesentially the eame respects a8 respon-
dent had claimed. The District Court
after a nonjury trial entered a declara-
tory judgpent for the SEC, and the
Court of Appeals affirmed. Respondent
in this case then moved for partial eum-
mary judgment against petitioners as'
serting that they were collaterally estop
ped from relitigating the issues that



68'L &t 2d

nature of the
sue had been
defendants atjury, in the
r proceedings
rught by the

Commisgion
te allegations
even though
it exieted in
rs permitted
nlity of par-
quent devel-
lral estoppel,
rdural areas
y's function,
he Seventh
they did not
I., dissented

f Seventh

rth Amend-
;ht to jury

ory etate
) - advi+

ir{unctive
rities and
a corpora-

, directons,
.iolation of
I laws, the
ttoajury
an action

h Amend-

statement
eading in
la nespon-
ict Crurt
r declara-
and the

spondent
tial eum-
)ners a8-
lly estop
ues that

PARKLANE HOSIERY CO. v SHORE
439 US 522,68LEdtut 552,99 S Ct 645

!$_ been reeolved against them in the
SEC euit. The District Court aeniJ iiie
motion on the ground that such * ,oplication of collateral estoppel *r"ia
deny petitioners their Severith A;;;a:
ment right to a jury trial. The CouJ of
Appeals reversed. .Efeld.

- 1.-Petitionens, who had a ,,full andfair" opportunity to litigate th"i, ;l"i;;
in the SEC action, are cbilaterally estop
ngd jrom- relitigating tte queeiio" 

-6f

In-qth9r the proxy etatement was maternlly false and misleading.

-(a) The mutuality doctrine, under
which neither party could use'" il;;
;udgment against the other unlees bothpartiea were bound by the same iuas-
ment, no -longer applies. See gtonaei_
r-ongue L,aboratories, Inc. v University of
19l9rs fbundation, 402 US gfg, 28 L Ed
%1788,91 S Ct 1434.

(b) The offensive uee of collateral e+
top-pel (when, as here, the plaintiff seeL
to foreclooe the defendant fiom litis;i;
an _iesue that the defendant has 

-p.e"il

91uly lit-iSated uneuccessfully in e,n ac-

lbl $tf another party) does 
"oi pi*

mote judicial economy in the same man-
ne-r that is promoted by defensive use(when a defendant eeeks to p""u"ni"
plaintitr from asserting a clai- ttrai itreplaiatiff has previousty litigated ;"d il;;
ag_ainst another defendant), and suchofensive uae may also be ;"f; t -;
d€tendant in various ways. Therefore.
the general rule should be that il;;
yhe-re a plaintitr could easily fr."" ioi"Jin the earlier action or ,rt,i." tfr" "rppfl-
cation of offensive eetoppel *o,la-'U"
unfair to a defendant, a tad i"ag" i"the exercise of his discretion shouiE-noJ
allow the use of offensive 

"ott"t"r"t 
-"r-

toppel.
(c) In this case, however, the applica-

tion of offensive collateral estoppel will
not reward a privatc plaintiff who could
have joined- in the previou, 

"ction, 
eirrc!the respondent probably could not have

Jolned in the injunctive action brousht
by the SEC. Nor is there any unfairn"ess
to petitioners in euch application herl.since petitioners had 6uery i"ce"-iiue
tully and vigorously to litig;t€ rh" SiiC
suit;.the judgment in the SEC action was
not inconsistent with any prior decision
and in the respondent's ac[ion th";;;i
be no procedural opportunities available
io the petitioners that were unavailable
.- _tl,u SEC action of a kind it 

"t -[hibe likely to cause a different r"r,rlt.----'"-
2. The use of collat€ral estoppei in this

case would not violate petitioners, Sev-
enth Amendment right to a jury trial. 

-'
. (a) An equitable determination san
have collateral estoppel efect in;;rt;
quent legal action without violating the
Seventh Amendment. Katchen-v il.;;;
382 US 323, rb LFa A Bgt, 86 S Ct;6i:
- G) Petitioners' contention thaf sin;ethe scope of the Seventh e-""arr""i

must be determined by reference to th;
common law as it exist€d in 1291, atwhich time collateral estoppel ** p"i-
qrtt d only where there was mutuaiityof parties, is without merit, for maniprocdural devices develo@ eince figithat have diminished the civil iurv,s
historic domain have been fou"i ,ioi"t"
violate the Seventh Amendment S.", ;.g.-Galloway v United Statee, g1g IJS
372, 38L393, 87 L Ed 1458, 63 S Cr
1077.
565 F2d 815, affirmed.
. Stewart, J., delivered the opinion ofthe Court, in which Burger, C. "1., ."jBrennan, Whit€, Marshall, Sfack;;".

Powell, and Stevens, JJ., joined. R"ill
quist, J., filed a dissenting opinion

APPEARANCES OF COUNSEL
Jack B- Ifyrtt argued the cause for petitioners.
Samuel K. Rosen argued the cause fii respondent.
Briefs of Counsel, p g56, infra.

OPIMON OF THE COURT

[{39 US S%]

"r*;,i:;tffi *,X-"deriveredthe*ff ;:.'f ;'fi,"',iilf n*i"1"iiil"":

657



of fact adjudicated advereely to it in
an equitable action may be collater-
ally estopped from relitigating the
eame iseues before a jury in a subse.
quent legal action brought against it
by a new party.

The respondent brought this stock-
holder's class action against the pe.
titioners in a Federal District C,ourt.
The complaint alleged that the pe-
titioner^s, Parklane Hosiery Co., Inc.
(Parklane), and 13 of its officers,
directorr, and stockholders, had is-
sued a materially false and mislead-
ing proxy statement in connection
with a merger.t The proxy state.
ment, according to the complaint,
had violated $$ 14(a), 10(b), and 20(a)
of the Securities Exchange Act of
1934, 48 Stat 895, 891, 899, as
amended, f5 USC $$ 78n(a), 78j(U),
and 78t(a) [l5.USCS $$ 78n(a), 78j(b),
and 78t(a)], as well as various rules
and regulations promulgated by the
Securities and Exchange C,ommis-
eion (SEC). The complaint sought
damages, rescission of the merger,
and recovery of costs.

Before this action came to trial,
the SEC filed suit against the same
defendants in the Federal District
Court, alleging that the proxy state.
ment that had been issued by Park-
lane was materially false and mis-
leading in essentially the same re
spects as those that had been alleged

U.S. SUPREME COURT REPORTS 58LEd2d

in the respondent's complaint. In-
junctive relief wae requested. After a
fourday

[,l80 US 826]
trial, the Dietrict Court

found that the proxy statement was
materially false and misleading in
the respects alleged, and entered a
declaratory judgment to that effect.
SEC v Parklane Hosiery C-o. 422 F
Supp 477. The Court of Appeals for
the Second Circuit afrrmed this
judgment. 558 F2d 1083.

[1a] The respondent in the present
case then moved for partial sum-
mary judgment against the petition-
ers, asserting that the petitioners
were collaterally estopped from reli-
tigating the issues that had been
resolved against them in the actiqn
brought by the SEC.' The District
Court denied the motion on the
ground that such an application of
collateral estoppel would deny the
petitioners their Seventh Amend-
ment right to a jury trial. The Court
of Appeals for the Second Circuit
reversed, holding that a party who
has had issues of fact determined
against him after a full and fair
opportunity to litigate in a nonjury
trial is collaterally estopped from
obtaining a subsequent jury trial of
these same issues of fact. 565 F2d
815. The appellate court concluded
that "the Seventh Amendment pre.

l. The amended complaint alleged that the
proxy statement that had been issued to the
etockholders was false and misleading because
it failed to discloee: (1) that the president of
Parklane would financially benefit as a result
of the company's going private; (2) certain
ongoing negotiations that could have resulted
in financial benefit to Parklane; and (3) that
the appraisal of the fair value of Parklane
etock was based on insufrcient information to
be accurate.

2. [1b] A private plaintiff in an action
under the proxy rules is not entitled to relief

658

simply by demonatrating that the proxy solici-
tation was materially falee and misleading.
The plaintitr must alao ahow that he was
injured and prove damagee. Mills v Electric
Autolite Cr. 396 US 375, 386-390, 24 L Dd
2d 593, 90 S Ct 616. Since the SEC action was
limited to a determination of whether the
proxy Btatement contained materially false
and misleading information, the reapondent
conceded that he would etill have to prove
theae other elements of his prima facie case
in the private action. The petitioners' right to
a jury trial on those remaining issues iB not
contest€d.



68LEd2d

mplaint. In-
sted. After a

tistrict Court
rtement was
isleading in
d entered a
that effect.

Y er.. 422 F
Appeals for
Ermed thig

the present
artial sum-
he petition-
petitioners

cl from reli-
had been
the actiqn

he District
)n on the
rlication of
l deny the
h Amend-
The Court
nd Circuit
party who
letermined
l and fair
a noqjury
rped from
ry trial of
. 565 Fzd
concluded
ment pre.

proxy aolici.
mioleading.

hat he was
b v Electric
w,24 L Ed
) action wa8
vhetller the
trially false
reapondent

re to prove
a facie case
ers'right to
rgues is not

PARKLANE HOSIEBY @. v SHORE
439 US 322,fi L &t 2d 662,99 S Ct 645

Ber:ves the right to jury trial only
with respect to issues of fact, 1and1
once those issues have been iully
and fairly adjudicated in a prioi
proceeding, nothing remains for
trial, either with or without a jury.',
Id., at 819. Because of an interdir-
cuit conflict,r we granted certiorari.
135 US 1006,56 L Ed 2d 387, 98 S
ct 1875.

[4]E US 8261

I

[2a] The threshold question to be
considered is whether, quite apart
from the right to a jury iriat under
the Seventh Amendmbnt, the pe
titioners can be precluded from reli-
tigating facts reeolved adversely to
them in a-prior equitable p"ocoedi.rg
with -another party undei the genl
eral law of collateral estoppel. Spe-
cifically, we must determini-whetlier
a litigant who was not a party to a
prior judgment may nevertheless use
that judgment "offensively,, to pre.
vent a defendant from relitiga[ing
issues resolved in the earliei prJ
ceeding.i

A

[3a{a] Collateral estoppel, like
the related doctrine of reJjudicata,6
has the dual purpose of protecting
litigants from the burden of reliti-
gating an identical issue with the
same party or his privy and of pro
moting judicial economy by prevent-
ing needless litigation. Blonder-
Tongue Laboratories, Inc. v Univer-
sity of Illinois Foundation, 402 US
313, 329-329,29 L &l 2d 7gg, 91 s
Ct 1434. Until relatively recently,
however, the scope of collateral es-
toppel was limited by the doctrine of
mutuality of parties. Under this mu-
tuality doctrine, neither party could
use a prior judgment

[48e us 327]

against the other r.rr"ffitn";T1*
were bound by the judgment.6 Based
on the premise that it is somehow
unfair to allow a party to use a prior
judgment when he himself would
not be so bound,T the mutuality re-

- 3. The pooition of the Court of Appeals forthe Second Circuit is in conflict ilth th.t
q{.en by the Court of Appeals for the Fifth
Circuit in Bachal v Hill, rlilB FZd 89.

{. In this context, ofensive use of collateral
eatoppel occurg when the plaintitr seeks to
forecloee the defendant from litigating an
issue the defendant has previousli titii.t"a
unsucceaafully in an action with another
party. Defensive use occurs when a defendant
.:".k" to. prevent lRlaintitr from asserting a
claim the plaintiff has previously litiga-t€d
and loet against another defendant.-

9. -t3bl Under the doctrine of res judicata,
a judgment on the merits in a prior iuit bare
a. eecond auit involving the aame parties or
their priviee based on the eame cause of ac-
tion. Under the doctrine ofcollateral estoppel,
on_the other hand, the second action is upo; a
different cause of action and the judgment in
the prior suit precludes relitgation if i""ro
actually litigated and necessary to the out_
come of the firgt action.'18 J. Moore. Feaerat

hTtiq l10.405[r], pp 622-$24 (2tJ d 1974t; e.
g., l,awlor v National Screen Serv. Corp. :ilSus 322, 326, 99 L EA LL22,76 S C{ 865;
C.ommisgioner v Sunnen, gBB US 5gl, 5g7, gi
I H^99-9,^S_S Ct 718; Cromwelt v 6unty oi
Sac, 94 US 35r, 352.3Sg, 24 L Ed tgl.

^-9. _9.^g, Bigelow v Old Dominion Copper Co.
225 US trr, 127,56 L Ed 1009, 32 S'ct ear
CIt iB a princi-ple of general elementary law
that eatopael of a judgment must be mutuat"t;
Buckeye Powder Co. v E. L Dupont de Nem-
ours Powder e-o. 248 US SS, 69, 6g L Ed 129,
39 S Ct 38; Restatement of Judgments g 9C(J94D.

. 7. [6b] It is a violation of due process for ajudgment to be binding on a litigant who was
not a party or a privy and therefore has
never had an opportunity to be heard. Blon-
der-Tongue l,aboratories, Inc. v Univereitv of
Illinois Foundation, 402 US gl3, BZg, At t Ed
!-?-ry, 91 S Cr 1434; Hansberry v Lee, Blius 32, 40, 85 L Ed 22. 6l S ct fis, 132 ALR
741.

559



U.S. SUPREME COURT REPORTS 58L&l 2d

quirement provided a party who had
titigated and lost in a previous ac-
tion an opportunitY to relitigate
identical issues with new parties.

By failing to recognize the obvious
di-fference in position between a
party who has never litigated an
issue and one who has fully litigated
and lost, the mutuality requirement
was criticized almost from its incep
tion.E Recognizing the validity of this
criticism, the Court in Blonder-
Tongpe Laboratories, Inc. v Univer-
sity of Illinois Foundation, supra'
abandoned the mutualitY require'
ment, at least in cases where a Pat-
entee seeks to relitigate the validity
of a patent after a federal court in a
previous lawsuit has alreadY de'
clared it invalid.e The

[43e us'tJb"o"du" 
n.r"r-

tion" before the Court, however, was
"whether it is any longer tenable to
aford a litigant more than one full
and fair opportunity for judicial res-
olution of the same issue." 402 US,
at328,28 L Ed 2d788,91 s Ct 1434.
The Court strongly suggested a nega-
tive answer to that question:

"In any lawsuit where a defen-
dant, because of the mutualitY
principle, is forced to Present a
complete defense on the merits to
a claim which the Plaintiff has
fully litigated and lost in a Prior

action, there is an arguable misal-
Iocation of reeources. To the ex-
tent the defendant in the second
suit may not win bY asserting,
without contradiction, that the
plaintif had fully and fairlY, but
unsuccessfully, litigated the same
claim in the prior suit, the defen-
dant's time and money are di-
verted from alternative usee-Pre
ductive or otherwis*to relitiga-
tion of a decided issue. And, still
assuming that the issue was re'
solved correctly in the first suit,
there is reason to be concerned
about the plaintiffs allocation of
resouroes. Permitting repeated liti-
gation 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 disinterestedneds
on the part of the lower courts,
hardly a worthy or wise basis for
fashioning rules of Procedure.'
Kerotest Mfg. Co. v COTwo Co.
342 US 180, 185, [96 L Ed 2@,72
S Ct 2191 (1952). Although neither
judges, the parties, nor the adver-
sary system performs PerfectlY in
all cases, the requirement of deter'
mining whether the PartY against
whom an estoppel is asserted had
a full and fair opportunity to liti-
gate is a most significant eafe'
guard." Id., at 3n,28 L Fd 2d 788'
91 S Ct 1434.'0

t

I

I
!

I
I
F
i

I

i
I

8. ThiB criticism was eummarized in the
Court'e opinion in Blonder-Tongue l,aborator-
ies, Inc. v Univeraity of Illinoie Foundation,
Bupra, at 32?,327,28 L Ed %).78f,91 S Ct
1434. The opinion of Justice Traynor for a

unanimous California Supreme Court in Bern-
hard v Bank of America Nat. Ttugt & Savings
As8n. 19 Cal 2d 807, 812, L22 P2d 892' 895,
made the point succinctly:

"No satisfactory rationalization has been ad-
vanced for the requirement of mutuality. Just
why a party who was not bound by a previous
action ehould be precluded from asserting it
as ree judicata against a party who was bound
by it is difficult to comPrehend."

560

9. In T?iplett v lowell, 29? US 638' 80 L Ed
949, 56 S Ct 645, the C.ourt had held that a
determination of patent invalidity in a prior
action did not bar a plaintitr from relitigating
the validity of a patent in a subeequent dction
against a iifferent defendant. This holding of
tfie Triplett cas€ was erplicitly overmled in
the Blonder-Tongue ca8e.

10. The Court alao emphasized that relitiga'
tion of issuea previously adjudicated is partic-
ularly wasteful in patent cases becouse of
theii ataggering expense and typical len-glh'
402 US, at S34, 348, 28 L M %l 78€, 91 S Ct
1434. Under the doctrine of mutuality of par-
ties an alleged infringer might find it cheaper



58L&t2d

Fable misal-
To the ex-

r the eecond
y aeserting,
r, that the
I fairly, but
ld the same
t, the defen-
ney are di-
e Uses-prG
-to relitiga-
e. And, still
3Ue waa re-
,e 6rst suit,
l concerned
rllocation of
'epeated liti-
re as long as
I defendants
er the aura
r 'a lack of
berestedne6s
,wer Courts,
se basis for
procedure.'

)O-1\ro Co.
EA 200,72

ugh neither
' the adver-
perfectly in
rnt of deter-
rty against
sserted had
nity to liti-
frcant safs.
, Ed 2d 7gg,

;638, 80 L Ed
d held that a
ity in a prior
m relitigating
equent action
his holding of
overnrled in

that relitiga-
rted is partic-
s because of
ryical length.
788, 9t S Ct

ualit-v of par.
nd it cheaper

PARKLANE HOSIERY CO. v SHORE
439 US 322,58LFH% 552,99 S Ct eai

[lE0 us 320]

- Th" Blonder-Tongue caae involved
defensive use of cofateral ot"pp"l--
a plaintiff was estopped f"om ,Jse"t-ing a claim that lhe ptainiif;;;
previously litrg"t"a and lost against
_another defendant. The presen;;;;
by--contrast, involves of""ri* 

"r" Jicollateral estoppel-a plaintitr- is
see*rng to estop a defendant from
relrtrgating the issues which the de-
fendant previously titigatea anJ foJt
agarnst another plaintitr In both the
oftensive and defensive use situa_
tioas, the party against whom ;;t ;pel rs asserted has litigated and lostin an earlier action. w"""rtfr"flr",
several reasong have been adrrarrcei
why the two situations shouia--be
treated differently.u

[7] First, ofensive use of collateral
estrippel does not promote judiciai
economy in the same manner as
defensive use does. Defe"si"e-use rI
ggJtlterat estoppel precludes . pl.i"_
trfi tiom relitigating identical issuesby merely "switching adversaries.'i
Bernhard v Bank oiarn".i."-Nut.
T*r,- 9. S:yrnss Assn. 19 Cal 2d, ;a8!3, 12-? P2d, at 898.12 Thus ili";:
sive collateral estoppel gives 

" 
pi;;_tu a strong incentive to join

[43e US 3S0]

potential defendants in the fi*t ;:ltion if possible. Offensive 
"r" oi.ot_

lateral estoppel, on the other hanJ.glerq precisely the opposite incen_
trve. since a plaintif will be able to
rely 

^on _a previous judgrnent 
"c;i";;a defendant but wili nol be brfid L;

that judgment if the defenda"t;;i
the plaintiff has every incentive 6
aSop! a "wait and se6" attitude, inthe hope that the first action' [v
another plaintitr will result in a iJ-
vorable judgment. E. g., Neva"ou- u
Ualdweil, 161 Cal App 2d 762,267_
7.68, 327 p2d 111, iiS; n"u"i*'u
Allen, 88 NJ Super S@, 571_572,
213- A2d 2G, gZ. Thus offensiu" ,.L'oi
collateral estoppel will titetv--ii_
crease rather than decrease the total
apgun! of litigation, since potential
plaintiffs will have eu""ythirrg to
gain and nothing to lose [y ,roI irr_
tervening in the first action.rs

[8a] A second argument against
offensive use of collateral estop-pet is
that it may be unfair to a defendant.
If a defendant in the first action is
sued for small or nominal damages,
he may have little incentive to ?J
fend vigorously, particularly if fu_
ture suits are not foreseeable. The

t-o pay royaltiee than to_challenge a patent
that had been declared invalid in; o;";;il:since the holder of the pateni il ;fiffi ;';
:Flrpry preaumption of validity. Id., at 838,28 L FA 2d ?8,91 S ct 1434.

ll. Various commentatorg have expressedreeervations regarding the applicati,ori 
"-i-oflrenslv.e _collateral eatoppel. Mutuality of Ee-toppet: Limits of the Bernhard Doctrine, 9Stan L Rev 281 ttSEZf; Semmel Aili'rai

$11nr"_t, Y"tt4ig ""d 
J"-;;;;i p;ff fiL9llT L.ttev l4b7 (1968); Note, The Impacts

oI uetenBive and Offensive Assertion ofCollat_eral Estoppel by a Nonparty, gS Geo Was; i

Rev 1010 (1967). profeesor Currie later tem-pered his reeervations. Civil procedu;, ,iil;
Tempest Brewe, EB Catif L R;r-itii96b;' ""

.12. Under the mutuality rcquirement. aplaintitr iould accompti"t, tt i" r*"fi rii""' f,"would not have been bound by the judgment
had the original defendant won.

- _13._frg Restatement (Second) of Judgments
$ 88(3t Clent Draft No. Z, Apr. t5,'ib;;;
provides 

-that application of coff ateJ-.gtop;i
may be denied if the party asserting it;;"ilfC
nave enected joinder in the firsi action between himself and his present adversary 'i --

I
I

i

56r



Evergreens v Nunan, L4L Fzd 927,
929 GAD cf. Berner v British Com-
monwealth Pac. Airlines, 346 F2d
532 (CA2) (application of offensive
collateral estoppel denied where de.
fendant did not appeal an adverse
judgment awarding damages of $35,-
000 and defendant was later sued for
over $7 million). Allowing offensive
collateral estoppel may also be un-
fair to a defendant if the judgment
relied upon as a basis for the estop
pel i6 itself inconsistent with ohe or
more previous judgments in favor of
the defendant.ta Still another situa-
tion where it might be

[48e US 33r]
unfair to apply offensive

estoppel is where the second action
afords the defendant procedural op
portunities unavailable in the first
action that. could readily cause a
diferent result.,o

C

[9] We have concluded that the
preferable approach for dealing with

U.S. SUPREME COURT REPORTS 58LEd2d

these problems in the federal courts
is not to preclude the use of offen-
sive collateral estoppel, but to grant
trial courts broad discretion to deter-
mine when it should be applied.r.
The general rule should be that in
cases where a plaintitr could easily
have joined in the earlier action or
where, either for the reasons dis-
cussed 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.

[2b] In the present case, however,
none of the circumstances that
might justify reluctance to allow the
offensive use of collateral estoppel is
present. The application of offensive
collateral

[489 US 3i}2]

estoppel will not here rtr.
ward a private plaintiff who could
have joined in the previous action,
since the respondent probably could
not have joined in the injunctive
action brought by the SEC even had
he so desired.t? Similarly, there is no

t

i
{
I

14. In Professor Currie's familiar example,
a railroad collision injurea 50 passengers all
of whom bring separate actions against the
railroad. After the railroad wins the first 25
suits, a plaintiff wins in euit 26. Professor
Currie argues that ofensive uee of collateral
eetoppel should not be applied so aB to allow
plaintiffa 27 through 5O automatically to re,
cover. Currie, supra, 9 Stan L Rev, at 3O4. See
Restatcment (Second) of Judgments g 88(4),
8Upra.

16. [8bl If, for example, the defendant in
the 6rgt action was forced to defend in an
inconvenient forum and therefore was unable
to engage in full acale diecovery or call wit-
neeses, application of offensive collateral es-
toppel may be unwarranted. Indeed, diferen-
ces in available procedures may eometimes
justify not allowing a prior judgment to have
eetoppel efect in a subeequent action even
between the eame parties, or where defensive
eetoppel is aeserted against a plaintifl who
has litigated and loet. The problem of unfair-
ness is particularly acute in cases of offensive

562

eetoppel, however, becauee the defendant
against whom eatoppel is asserted typically
will not have choeen the forum in the firgt
action. See, id., at $ 88(2) and Comment d.

f6. This is essentially the approach of id., at
$ 88, which recognizee that "the distinct tr€nd
if not the clear weight of recent authority is
to the effect that there is no intrinsic difier-
ence between 'ofensive' as distinct frrom 'de
fensive' issue preclusion, although a atronger
ahowing that the prior opportunity to litigatc
was adequate may be required in the former
situation than the latter." Id., Reporter'e
Note, at 99.

17. SEC v Evereet Management Corp. ,176

F2d 1236, l24O (€,IA\ ('[T[re complicating
effect of the additional is8ue6 and the addi-
tional partiee outweighs any advantage of a
single dispoeition of the common issues").
Moreover, coneolidation of a private action
with one brought by the SF,C without its
consent is prohibited by atatute. 15 USC
$ 78u(s) [15 USCS $ 78uG)].

i
I

I

I



PABKLANE HOSIERY CO. v SHORE
439 US 822,58 L Ed 2d 652,99 S Ct 645

I

I

:

I
I
I

I

unfairness to the petitioners in ap
plyrng offensive collateral estoppel
in this case. First, in light of the
serious allegations made in the
SEC's complaint against the Pe-
titioners, as well as the foreseeabil-
ity of subsequent private suits that
typically follow a successful Govern-
ment judgrnent, the petitioners had
every incentive to litigate the SEC
lawsuit fully and vigorously.tt Sec-

ond, the judgment in the SEC action
was not inconsistent with any previ-
ous decision. Finally, there will in
the respondent's action be no proce-
dural opportunities available to the
petitioners that were unavailable in
the first action of a kind that might
be likely to cause a different result.re

We conclude, therefore, that none
of the considerations that would jus-
tify a refusal to allow the use of
offensive collateral estoppel is pres-
ent in this case. Since the petition-
ers received a "full and fair" oppor-
tunity to litigate their claims in the

[4Se us 333]

SEC action, the contemporary law of
collateral estoppel leads inescapably
to the conclusion that the petitioners
are collaterally estopped from reliti-
gating the question of whether the

proxy statement v/as materiallY
false and misleading.

II

[10a] The question that remains is
whether, notwithstanding the law of
collateral estoppel, the use of offen-
sive collateral estoppel in this case

would violate the petitioners' Sev-
enth Amendment right to a jury
trial.D

A

[11] "[T]he thrust of the [Seventh]
Amendment was to preserve the
right to jury trial as it existed in
L791." Curtis v Loether, 415 US 189,
193, 39 L Ed 2d 260,94 s Ct 1005.
At common law, a litigant was not
entitled to have a jury determine
issues that had been previously adju-
dicated by a chancellor in equitY.
Hopkins v Lee, 6 Wheat 109; 5 L Ed
218; Smith v Kernochen, 7 How 198,
217-2L8,12 L Ed 666; Brady v Daly,
175 US 148, 158-159, 44 L Ed 109,
20 S Ct 62; Shapiro & Coquillette,
The. Fetish of Jury Trial in Civil
Cases: A Comment on Rachal v Hill,
85 Harv L Rev 442,44U58 (1971)."

18. After a fourday trial in which the
petitioners had every opportunity to present
evidence and caII witnesses, the District Court
held for the SEC. The petitioners then ap
pealed to the Court of Appeals for the Second
Circuit, which affirmed the judgment against
them. Moreover, the petitioners $/ere already
aware of the action brought by the respon-
dent, since it had commenced before the fiIing
of the SEC action.

19. [2c] It is true, of course, that the
petitioners in the present action would be
entitled to a jury trial of the issues bearing on
whether the proxy statement was materially
false and misleading had the SEC action
never been brought-a matter to be discussed
in Part II of this opinion. But the presence or
absence of a jury as factfinder is basically
neutral, quite unlike, for example, the neces-

sity of defending the first lawsuit in an incon-
venient forum.

20. The Seventh Amendment provides: "In
Suils at common law, where the value in
controversy shall exceed twenty dollars, the
right to jury trial shall be preserved. . ."

21. The authors of this article conclude that
the historical aources "indicates that in the
late eighteenth and early nineteenth centu-
ries, determinations in equity were thought to
have as much force as determinatione at law,
and that the possible impact on jury trial
rights was not viewed with concern. . . If
collateral estoppel is otherwise warranted, the
jury trial question should not stand in the
way." 85 Harv L Rev, at 455456. This com-
mon-law rule is adopted in the Restatement of
Judgments $ 68. Comment i (1942).

66il



U.S. SUPREME COURT BEPORTS 58LEd2d

Recognition that an equitable de-
termination could have collateral-es-
toppel effect in a subsequent legal
action was the major premise of this
Court's decision in Beacon Theatres,
Inc. v Westover, 3Sg US b00, B L Ed
2d 988, 79 S Ct 948. In that case the
plaintiff sought a declaratory judg-
ment that certain arrangemenLs be-
tween it

[4r9 US 834]

and the defendant were notin violation of the antitrust laws,
and asked for an injunction to pre.
vent the defendant from instituting
an antitrust action to challenge the
arrangements. The defendant denied
the allegations and counterclaimed
for treble damages under the anti-
trust laws, requesting a trial by jury
of the issues common to both 

- 
the

legal and equitable claims. The
Court of Appeals upheld denial of
the request, but this Court reversed,
stating:

"[f]he effect of the action of the
District Court could be, as the
Court of Appeals believed, ,to limit
the petitioner's opportunity fully
to try to a jury every issue which
has a bearing upon it treble dam-
age suit,' for determination of the
issue of clearances by the judge
might 'operate either by way of
res judicata or collateral estoppel
so as to conclude both parties with
respect thereto at the subsequent
trial of the treble damage claim.,',
Id., at 504, 3 L Ed 2d 988, Z9 S Ct
948.

It is thus clear that the Court in
the Beacon Theatres case thought
that if an issue common to Uoth

legal and equitable claims was fir8t
dete-rmined by a judge, relitigation
of the issue before a jury might be
foreclosed by res judicata or collat
e-ral estoppel. To avoid this result,
the Court held that when legal and
equitable claims are joined in the
same action, the trial judge has only
limited discretion in deteimining thl
sequence of trial and ,,that discre.
tion . . . must, wherever possible, be
exe_rcised to preserve jury trial.,, Id.,
at 510, 3 L Ed 2d 988, ?9 S Ct g4g.n

Both the premise of Beacon Thea-
tres, and the fact that it enunciated
no more than a general prudential
rule were confirmed by this Court,s
decision in Katchen v Landy, 392 US
323, t5 L Ed 2d 391, 86 S Ct 467. In
that case the Court held that a
bankruptcy court, sitting as a statu-
tory court of equity, is empowered to
adjudicate

[43e us 8s5]
equitable claims prior to

legal claims, even though the factual
issues decided in the equity action
would have been triable by a jury
under the Seventh Amendmenl if
the Iegal claims had been a{iudi-
cated first. The Court stated:

"Both Beacon Theatres and Dairy
Queen recognize that there mighl
be situations in which the Court
could proceed to resolve the equi-
table claim first even though lhe
results mrght be dispositive of the
issues involved in the legal claim.,,
Id., at 339, 15 L Frl 2d 891, 86 S Ct
467.

Thus the Court in Katchen v tandy
recognized that an equitable deter-
mination can have collateral-estop

--,22.. S^imil.ar_ly, in both Dairy eueen, Inc. v
w99q,-369 Us 46s, 8 L Ed 2d 44,-sz s ct Cga,
and Meeker v Ambassador Oil Corp. B7E US
160, 11 L &l 2d 26t,84 S Ct 2?9, ihe Co,."t

w

hgld that legal cleimr should ordinarily be
tried before equitable claims to p.eeerve the
right to a jury trial.



68LEd2d

dms was first
e, relitigation
iury might be
nta or collat-
d this result,
hen legal and
joined in the
udge has only
:termining the
"that discre-

er possible, be
ury trial." Id.,
79 S Ct 948."

Beacon Thea-
it enunciated

ral prudential
)y this Court's
Landy, 382 US
16 S Ct 467. In

held that a
ing as a statu-
empowered to

rl
claime prior to
rgh the factual
equity action

rble by a jury
S,mendment if
I been adjudi-
ststed:

tres and Dairy
at there might
rich the Court
solve the equi-
en though the
rpositive of the
re legal claim."
2d 391, 86 S Ct

rtchen v Landy
quitable deter-
:ollateralcstop

ruld ordinarily be
ns to preeerve the

B

Despite the strong support to be
found both in history and in the
recent decisional law of this Court
for the proposition that an equitable
determination can have collateral-es-
toppel effect in a subsequent legal
action, the petitioners argue that
application of collateral estoppel in
this case would nevertheless violate
their Seventh Amendment right to a
jury trial. The petitioners contend
that since the scope of the Amend-
ment must be determined by refer-
ence to the common law as it existed
in 1791, and since the common law
permitted collateral estoppel only
where there was mutuality of par-
ties, collateral estoppel cannot con-
stitutionally be applied when such
mutuality is absent.

The petitioners have advanced no
persuasive reasion, however, why the
meaning of the Seventh Amendment
should depend on whether or not
mutuality of parties is present. A
litigant who has lost because of ad-
verse factual findings in an equity
action is equally deprived of a jury
trial whether he is estopped from
relitigating the factual issues
against the same party or a new
party. In either case, the party
against whom estoppel is asserted
has litigated questions of fact, and

PARKLANE HOSIERY CO. v SHORE
439 US 322,ffi L Ed 2d 552,99 S Ct 645

pel effect in a subsequent legal ac- has had the facts determined against
tion and that this estoppel does not him in an earlier proceeding.
violate the Seventh Amendment. [439 US 836]

In ei-
ther case there is no further fact-
finding function for the jury to per-
form, since the common factual is-
sues have been resolved in the previ-
ous action. Cf. Ex parte Peterson,
253 US 300, 310, 64 L Ed 919, 40 S
Ct 543 ("No one is entitled in a civil
case to trial by jury unless and ex-
cept so far as there are issues of fact
to be determined").

The Seventh Amendment has
never been interpreted in the rigid
manner advocated by the petition-
ers. On the contrary, many proce.
dural devices developed since 1791
that have diminished the civil jury's
historic domain have been found not
to be inconsistent with the Seventh
Amendment. See Galloway v United
States, 319 US 372, 38&393, 87 L Ed
1458, 63 S Ct 1077 (directed verdict
does not violate the Seventh Amend-
ment); Gasoline Products Co. v
Champlin Refining Co. 283 US 494,
497498,75 L Ed 1188, 51 S Ct 513
(retrial limited to question of dam-
agies does not violate the Seventh
Amendment even though there was
no practice at common law for eet-
ting aside a verdict in part); Fidelity
& Deposit Co. v United States, 187
us 315, 319-321, 47 L EA 194, 23 S
Ct 120 (summary judgment does not
violate the Seventh Amendment).8

The Galloway case is particularly
instructive. There the party against
whom a directed verdict had been

23. The petitioners' reliance on Dimick v
Schiedt, 293 US 474, 79 L Ed 603, 55 S Ct
296, 95 ALR 1150, is misplaced. In the Dimick
case the C,ourt held that an increase by the
trial judge of the amount of money damages
awarded by the jury violated the second
clause of the Seventh Amendment, which
provides that "no fact tried by a jury, sha[ be
otherwise re-examlned in anv Court of the

United States, than according to the rules of
the common law." C-ollateral eotoppel does not
involve the "re-examination" of any fact de
cided by a jury. On the contrary, the whole
premise of collateral eetoppel is that once an
issue has been resolved in a prior proceeding,
there is no further factfinding function to be
performed.

565



entered argued that the procedt're

*"" ,rt.on.litutional under the Sev-

"rrth 
A^"t dment. In rejecting this

claim, the Court said:

"The Amendment did not bind

the federal courts to the exact-

oioc"a,rrut incidents or details of
iurv trial according

[439 US 337]

to the common law

,in 1791, any more than it tied'tt"* 
to the iommon-law sYstem of

pf"uai"g or the sPecific- rules.of
i"ia"".-" then Prevailing' Nor
were 'the rules of the common

law' then Prevalent, including
lhose relating to the Procedure bY

*t i"f, the judge regulated the ju-

rv's role on questions of fact, crys'
iiili*J in a fixed and immutable
system' .

"The more logical conclusion' we

tfti"t, and t[e one which both

history and the previous decisions

here iuPPort, is that the Amend-

*""t *"" designed to Preserve the

basic institution of jury trial in

U.S. SUPREME COURT REPORTS

SEPARATE OPINTON

only its most fundamental ele'

-"tttt, not the great mass of Pro
c"a"t.t forms and details, varYing
even then so widelY among -com-
mon-Iaw jurisdictions'" 319 US' at
bgo, ggz, 8? L Ed 1458, 63 s ct
1077 (footnote omitted)'

[10b, 12a] The law of collateral
esioppel, Iike the law in other proce'

il;;i areas defining the scoPe of the
ir*'t function, has evolved since

lfLgt. Under the rationale of the

Galloway case, these develoPments

"." "ot" 
rePugnant to the Seventh

Amendment simPlY for the reason

lfrJ tft"y did not-exist in 1791' Thus

ii. 
"" 

*" ttuve held, the law of collat'
Liui 

"ttopp"l 
forecloses the petition-

"r. 
fto*'retitigating the factual is-

sues determined against them in the

SPC uctio", nothing in the Seventh

Amendment dictates a different re
;;ii; ;;;" though because of lack of
mutualitY there would have been no

collateral estoPPel in 1791's

The judgment of the Court of AP
peals is affirmed.

58LEd2d

Mr. Justice Rehnquist, dissent-
ing.

ers' demand for a jury trial in thil
i"*."it. outrage is an emotion all
but

t43e us SltEl

imPossible to generate with re
It is admittedtY difficult to be out-

racJaUout the treatment accorded

ffif,"-i"aeral judiciatl to ryl't'o1
24. ln reaching this concluaion, the Court of

Appeals went on to Etate:

"\Vere there any doubt about the [queation
*i"ift". the pelitioners were entitled to I
i,rri- t a"t"t.ination of the issues otherwise
'r,"fil*t to collateral estoppell it should in any

erent be reeolved against the defendants rn

;his-case for the reaeon that, although they

*L" f"fry aware of the pendency of.tfe p1s;
ent suit throughout the non-jury- tnal ot.lne

SEC;". they"made no effort to protect -their
IIi,-* " 

jurv trial of the damage claims

;;t "d 
by' plaintiffs. either b1' seeking .to

;;t" iti"i or the Present action or bY

rJ"*ti"* Jufue Dutry- in the exerciee of hrs

iiiJ"r"pr*-rant to Rule 39(br' (o' FR Civ

566

P. to order that the issues in the SEC c48e k
ii# "ur- 

" i; ; before an advisory jurY'"

rH-Ffi . it'ezi -szz. (Footnote omittcd')
"Tr26'i rio"-co"* of Appeals was mislaken

in'the# suggeations' The petitionen drd lol
ii;;';-r[hTto a jurv trdl in the qpitable
iri""ii""-"ition u.o,igr't bv the SEC' More'

oJ"t, * advisory jury, which miSht have oruy

ili;il -anJ ct,irpric"ted that proceeding'

wouid not in any event have been a xveDrn
el""a-""t jury. end the Petitioners.were
;;-; " 

posiilon to ex@ite the private ac'

ffi';;; il.; th" SEC action' The Securitiee

i;;;;;;" A;, :l_le* H:"ttfi lTr*f,Henforcement actlons Dy

;;';;l"l pttrtt ".liot" 
15 Usc ! 78u@)

lr5 USCS $ 78utg)l'



58LEd2d

fundamental ele
great mass of pro
nd details, varying
ridely among com-
etions." 319 US, at
Ed 1458, 63 S ct
mitted).

law of collateral
law in other proc+
ng the scope of the
has evolved since

rationale of the
lrese developments
rt to the Seventh
rly for the reason
exist in 1791. Thus
l, the law of collaL
:lose6 the petition-
ing the factual is-
gainst them in the
ng in the Seventh
tes a different re-
becauee of lack of
'ould have been no
in 1791.u

f the Court of Ap

' 
jury trial in this

is an emotion all

rs it88l
o generate with re

ruea in the SEC case be
lore an advisory jury."
'ootnote omitted.)
Appeals w6s mistekgn
lhe petitionera did not
r trial in the equitable
ght by the SEC. More
which might have only
ated that proding,
rt have been a Seventh
i the petitioners were
xpeditc the private ac-
i action. The Securities
{ provides for prompt
y the SEC unhindered
tions. 15 USC 5 78u€)

PARKLANE HOSIEBY CO. v SHORE
439 US 322, 58 L Ed tut 552, 99 S Ct 645

spect to a corporate defendant in a
securities fraud action, and this case
is no exception. But the naggrng
Bense of unfairness as to the way
petitioners have been treated, engen-
dered by the imprimatur placed by
the Court of Appeals on respondentb
"heads I win, tails you lose,, theory
of this litigation, is not dispelled by
this Court's antiseptic analysis of
the issues in the case. It may be that
if this Nation were to adopt a new
Constitution today, the Seventh
Amendment guaranteeing the right
ofjury trial in civil cases in federal
courts would not be included among
its provisions. But any present senti--
ment to that effect cannot obscure or
dilutc our obligation to enforce the
Seventh Amendment, which was in-
cluded in the Bill of Rights in t7gl
and which has not since been re-
pealed in the only manner provided
by the Constitution for repeal of its
provisions.

The right of trial by jury in civil
cases at common law is fundamental
to -our history and jurisprudence.
Today, however, the Cou* reduces
this valued right, which Blackstone
praised as "the glory of the English
law," to a mere "neutral"

[489 US :]tgl
factor andin the name of procedural reform

denies the right of jury trial to de.
fendants in a vast number of casesin which defendants, heretofore,
have enjoyed jury trials. Over Bd
years ago, Mr. Justice Black la-
mented the "gradual process of judi-

cial erosion which in one.hundred-
fifty years has slowly worn away a
major portion of the essential giar_
antee of the Seventh Amendment.,,
Galloway v United States, glg US
372,397,87 L Ed 145g,63 S Ct 107?
(1943) (dissenting opinion). Regrett-
ably, the erosive process cortlrrues
apace with today's decision.t

The
vides:

I
Seventh Amendment pro-

t

t

I

I
!
I
I
t

"In Suits at common law, where
the value in controversy shall ex-
ceed twenty dollars, the right oftrial by-jury shall be preserved,
and no fact tried by a jury, shali
be otherwise reexamined in an"
Court of the United States, thai
according to the rules of the com-
mon law."

The history of the Seventh Amend-
ment has been amply documented
by this Court and by iegal scholars,2
and it would serve no ueefd purpose
to attempt here to repeat all that
has been written on the subject.
Nonetheless, the decision of this Lase
turns on the scope and effect of the
Seventh Amendment, which, per-
haps more than with any other pre
vision of the Constitution, are de-tcr-
mined by reference to the historical

[439 US:t40]
setting in which the Amendment
yT _{opted. See Colgrove v Battin,
1lq US 149, L52,37 L Ed %J.522, 93
S Ct 2448 (f973). It therefore is ap
propriate to pause to review, albeit

l. Becaus€ I believe that the use ofoffensive
collateral estoppel in this particular case wa.6
improper, it is not neceasa-ry for me to decide
whether I would approve its ,rse in 

"ircu--Btances where the defendant's right to a jury
trial was not impaired.

^-2: Qge,!..s., Qlrroye v Batrin, 4lB US 149,
37 L Ed tul 522. 9g S Ct 2448 l1973t; Capitai
Traction Co. v H9l tZ4 US t, 43 L E; AZ5, r9

q Ct 580 (1899); Paraons v Bedford, B pet 433,7 L Ed 732 (7830); Henderson, The Back-
ground of the Seventh Amendment, g0 Harv
! R"u 289 (1966) (hereinafter Henderson);
Wolfram, The Constitutional History of the
Seventh Amendmenr, 5? Minn L ilev 6:i9
(1973) (hereinafter Wolfram). See alEo Unitcd
States v Woneon, 28 F Cae ?48 (No. f6,ZEO]
(@ Mass 1812) (Story, C. J.).



briefly, the circumstances preceding
and attending the adoption of the
Seventh Amendment as a guide in
ascertaining its application to the
case at hand.

A

It is perhape easy to forget, now
more than 200 years removed from
the events, that the right of trial by
jury was held in such esteem by the
colonists that its deprivation at the
hands of the English was one of the
important grievances leading to the
break with England. See Sources
and Documents Illustrating the
American Revolution 1764-1788 and
the Formation of the Federal Consti-
tution 94 (S. Morison 2d ed 1929); R.
Pound, The Development of Consti-
tutional Guarantees of Liberty 69-72
(1957); C. Ubbelohde, The ViceAd-
miralty Courts and the American
Revolution 2O&2Ll (1960). The ex-
tensive use of vice.admiralty courts
by colonial administrators to elimi-
nate the colonists' right of jury trial

U.S. SUPREME COURT REPORTS 58L&l%

was ligted among the specific offen-
sive English acts denounced in the
Declaration of Independence.E And
after

[480 US 84r]
war had broken out all ofthe

13 newly formed States restored the
institution of civil jury trial to its
prior prominence; 10 expressly guar-
anteed the right in their state con-
etitutions and the 3 others recog-
nized it by statute or by common
practice.'Indeed, "[t]he right to trial
by jury was probably the only one
universally secured by the firet
American etate constitutione . . . ."
L. kry, Legacy of Suppreesion:
Freedom of Speech and Press in
Early American History 281 (1960).!

One might justly wonder then why
no mention of the right of jury trial
in civil cases should have found its
way into the Constitution that
emerged from the Philadelphia Con-
vention in 1787. Article III, $ 2, cl 3,
merely provides that "The Trial of
all Crimes, except in Cases of Im-
peachment, shall be by Jury." The

8. The Declaration of Independence etates:
"For depriving ua in many cases, of the bene
fits of Trial by Jury." Just two years earlier,
in the Declaration of Rights adopted October
14, 1774, the 6rat Continental Congreas had
unanimously reeolved that "the reapective
colonies are entitled to the common law of
England, and more eapecially to the great and
ineatimable privilegp of being tried by their
peers of the vicinage, according to the couree
of that law." I Joumals of the C,ontinental
Congrees (1904 ed) 69.

Holdsworth has written that of all the new
methods adopted to atrengthen the adminis-
tration of the British Lawa, "the most effec-
tive, and therefore the moet disliked, was the
exteneion given to the jurisdiction of the reor-
ganized courts of admiralty and viceadmi-
ralty. It was the moet effective, because it
deprived the defendant ofthe right to be tried
by a jury which was almoet certain to acquit
him." l1 W. Holdgworth, I History of English
Law 110 (1966). While the vice-admiralt;-
courts dealt chiefly with criminal offenges,

668

their jurisdiction also was extended to many
areas of the civil law. Wolfram &{ n 47.

4. Ga Const, Art IJ(I (L777), i^ 2 fire Fed-
eral and Stat€ Constitutione Colonial Char-
ters, and Other Organic [,aws 786 (F Thorpe
d 1900) (hereinafter Thorpe); Md Conet, Art
III (1776), in 3 Thorpe 168&-1687; MaaB Const,
Art XV (1780), in 3 Thorpe 1891-1892; NH
Const, Art XX (1784), in 4 Thorpe 24O6; NJ
Conat, Art XXII (1776), in 6 thorpe 2598; NY
Const, Art XI.J. (1777), in 5 Thorpe 2637; NC
Const, Declaration of Rights, Art XIV (1776),

in 5 Thorpe 7188; Pa @nst, Declaration of
Rights, Art XI (1776), in 6 Thorpe 30811; SC
Const, Art XLI (1778), in 6 Thorpe 8267; Ya
Const, Bill of Righte, $ 1r (1776), in 7 Thorpe
3814. Se€ Wolfram 655.

6. When Congress in 1787 adopted the
Northweet Ordinance for governance of the
territoriee west of the Appalachians, it in-
cluded a g'uarantae of trial by jury in civil
caee6. 2 Thorpe 960-961.



58LEd2d

specific ofen-
ounced in the
rndence.! And

l
r out aII ofthe
s restored they trial to its
xpressly guar-
eir state con-
others recog-' by common
right to trial
the only one
)y the frst
rtions...."
Suppression:
nd Press in
281 1195p;.0

ler then whv
ofjury trial

rve found its
tution that
delphia Con-
IU, g 2, cl B.
the Trial oi
lases of Im-
Jury." the

:nded to manv
64 n 47.

in 2 The Fed-
blouial Char-
785 (F Thoroe
Md Const, Art
7; Mase Const,
891-1802; NH
rrpe 2456; NJ
trpe 2698; Ny
rrpe 2&37; NC
rt XfV (UZ6),
)reclaration of
'rpe 308i1; SC
,rp. 3i267; Ya
, in 7 I'horpe

adopted the
rance of the
hians, it in-
jury in civil

PARKLANE HOSIERY CO. v SHORE
439 US 322,58 L Ed 2d 552, 99 S ct 64;

omission of a clause protective of the
civil jury right was not for lack oitrying, however. Messrs. pincknev
and Gerry proposed to provide--l
clause securing the right of iurvtrial in civil cases, but their "d;:failed.t Several reaslons

[llile us 342]

advanced for this faiture. ,[XS:lrlry!. argued that the p""cti"" ofcivil juries among the several S;t".
vaned so much that it was too diffi-cult to draft constitutional fr"er""Lto accommodate the ditrerent-etaL
practicgt,See C;olgrove v Battin, 4i5
US, at 159, gZ L Ed 2d 522, 9A'S Ct
2448.1 Whatever the reason for the
omission, however, it is clear thai
even before the delegates had left
Philadelphia, plans were under wavto attack the proposed Constitutioi
on the ground that it failed to con_
tain a guarantee of civil jury t;iai-;
the -new federal courts. iS.J n. nui-
l^and, $nrSe Mason 9l (1961)! W;i-
fram, The Constitutio""f Hi"6ry;f
the Seventh Amendment, EZ Minn il
Rev 639, 662 (fgZB).

T.he vjrtually complete absence ofa blll.of rights in the proposed con_stitution was the principat f;;-;f

the Anti-Federalists' attack on the
Constjtution, and the lack ;i;;r;;i:
sion.,for civil juries featured p;;;i-
nently in their arguments. SeL par-
lols_ v_ Bedford, 3 pet 4gg, 445, 7 LEd 732 (1880). Their pf"". ,-t*"f 

"responsive chord in the populace,
grd the price exacted i.'*;;;
States for approval of the A;;#_
tion was the appending of " fi* 

-of
recommended amendments, chief
among them a clause securing the
lght of jury trial in civil .L;;.;
tbsponding to the pressures for acivil jury

[439 US 34S]
quarantee generated dur-

qr8 the ratification de6ates,-th" n*t
Congress under the new Constitution
at ik first eession in 17g9 p"opos;;
to amend the Constitution by 

"iaingthe following language: ,,In-suits ai
cgmmon law, between man and man,the trial by jury, as one of the besi
securities to the rights of the p"opf",
ought to remain inviolate.', 1 innals
of. elg. 435 (U89). tt at p"ouisior,,
{ter9d in language to what U"crrn"the Seventh Amendment, was pro
po.."{ by the Congress in i7gg to-the
Iegrslatures of the several States and
became effective with its "rtifi;il;;by Virginia on Decembe" tS, t-Zgf i"

. 8. The propoeal was to add the followino
l"nguage to Art ltr: ..And a trial by ju.v shJjbe preaerved as usual i" ci"il J"&.;i ;'fi.
I*.ld, Ihe Records of tfre feaffiC";;-
tion oJ.l78?, p 6iA (191I). ffr" aeUat" ,ecaii.
iq..rt* propoeal is quoted ; -C;L#;;
Dattrrn,8upra, at lE3_15S, n g, 87 L Aa2d SZZ,93 S Ct 2448.

-, 
7. Tlt" objection of Mr. Gorhem of Massa-

lnl31r" was. that-.[tJhe constitution of JuriesrR oulerent in different States and the triJ
itself is uaua.l in diferent caee6 in aife.e"tS*tP " 2 M. Farand, supra, at 62g. Com-mentators have sugrgested 

-eeveral 

"aaiti"i"tIeTolB for the failure of tt" 
"o"u"niil"--f

il?:#,: i:ililJ?#,i*tr *" #tftr:similar provision for,cjr.il 5u.i" *." 
"i-f;'""i

in part that the convention members simolvwanted to go home"); Wolfram 666556.--'-'',

.,t. See. Hendereon 29g; Wolfram 66?_Z0g.vrrglnla's recommended jury trial a-end-
ment. ie typical: ..That, in ci"t"orl"aG'[
8p9:tmg property, and in suits between manano man, the ancient trial by jury is one ofthe greateet eecuritiee to tfr! "*frt" 

"i tfre

fr'"h,s,i!"H,'i3'B"f; HT,-:ii"f;Hi
C,onstitution 668 (2d ed 1886).

,9. The Judiciary Act of September 24. llilg.wnrch. was passed within six months of theorganization of the new government and onthe day -before the first tO e-u"a."n;';#
proposed to the legislatures of the S;G 1;th.e.FiTt Consessl provided i";; ;i;il";trial right. t Stat Z? 

-

689



The foregoing sketch is meant to
suggest what many of those who
oppose the use ofjuries in civil trials
seem to ignore. The founders of our
Nation coneidered the right of trial
by jury in civil cases an important
bulwark against tyranny and corrup
tion, a safeguard too precious to be
Ieft to the whim of the sovereign, or,
it might be added, to that of the
judiciary.r0 Those who passionately
advocated the right to a civil jury
trial did not do so because they con-
sidered the jury a familiar proce'
dural device that should be contin-
ued; the concerns for the institution
ofjury trial that led to the passages
of the Declaration of Independence
and to the Seventh Amendment
were not animated by a belief that
use of juries would lead to more
efficient judicial administration.
Trial by a jury of laymen rather
than by the sovereign's judges

[439 US 3{4]
waa

important to the founders because
juries represent the layman'B com-
mon sense, the "passional elements
in our nature," and thus keep the
administration of law in accord with
the wishes and feelings of the com-
munity. O. Holmes, Collected Legal
Papers 237 (1920). Those who fa-
vored juries believed that a jury
would reach a result that a judge
either could not or would not
reach.rr It is with these values that

U.S. SUPREME COURT REPORTS 58LEd2d

underlie the Seventh Amendment in
mind that the Court should, but ob-
viously does not, approach the deci-
sion of this case.

B

The Seventh Amendment requires
that the right of trial by jury be
"preserved." Elecauee the Seventh
Amendment demands preservation
of the jury trial right, our cases have
uniformly held that the content of
the right must be judged by histori
cal standards. E. 9., Curtis v
Ioether, 415 US 189, 193, 39 L Ed
2d260,94 S Ct 1005 (1974); Colgrove
v Battin, supra, at 15L156, 37 L Ed
2d, 522,93 S Ct 2448; Ross v Bern-
hard, 396 US 531, 533,24 L Ed 2d
729,90 S Ct 733 (1970); Capital Trac-
tion Co. v Hof, 174 US 1, 8-9, 43 L
Ed 873, 19 S Ct 580 (1899); Parsons v
Bedford, supra, aL 446,7 L Fa 732
(1830). Thus, in Baltimore & Caro
lina Line v Redman, 295 US 654,
657, 79 L &l 1636, 55 S Ct 890
(1935), the Court stat€d that "[t]he
right of trial by jury thus preserved
is the right which exieted under the
English common law when the
Amendment was adopted."

[439 US 845]

schiedt, 2e3 us *firl%"'it;
603, 55 S Ct 296, 95 ALR 1150
(1935), the Court held: "In order to

I
?

t

t
I

lI

10. Thomas Jeferson etated: "I consider
[trial by jury] as the only anchor yet imagined
by man, by which a government can be held
to the principles of its conetitution." 3 The
Writings of Thomas Jefferson 71 (Washington
ed 1861).

ll. Wolfram 671. Profeesor Wolfram has
writt€n:
"[T']he antifederalists were not arguing for the
institution of civil jury trial in the belief that
jury triaLs were ghort, inexpensive, decorous
and productive of the eame decisions that
judges sitting without juries would produce.

670

The inconveniences of jury trial were ac-
cepted precisely because in important in-
8tance6, through its ability to dieregard aub
etantive rules of law, the jury would reach a
result that the jufue either could not or
would not reach. Those who favored the civil
jury were not misguided tinkerers with proce
dural devicee; they were, for the day, liberta-
rians who avowed that important areas of
protection for litigants in general, and for
debtors in particular, would be placed in
grave danger unless it were required that
juries sit in civil cases." Id., at 671-E72.



%t

;in
ob
Eci

.re8

be
nth
ion
lVe
of

cri-
v

Ed
0ve
Ed
rfn-
2d

'ac-
}L
rSv
t32
tro
iil,
390

lhe
ved
the
bhe

kv
Ed
150
to

ac-
in-

sub
:ha

or
:ivil
oce
rrta-
;of
for
in

:hat

PARKLANE HOSIERY CO. v SHORE
439 US 322,58 L Ed 2d 552,99 S Ct 645

ascertain the scope and meaning of
the Seventh Amendment, resort
must be had to the appropriate rules
of the common law established at
the time of the adoption of that
constitutional provision in 1791."t2 If
a jury would have been impaneled in
a particular kind of case in 1791,
then the Seventh Amendment re-
quires a jury trial today, if either
party so desires.

To be sure, it is the substance of
the right of jury trial that is pre.
served, not the incidental or collat-
eral effects of common-law practice
in 1791. lValker v New Mexico & S.
P. R. Co. 165 US 593, 596, 41 L Ed
837, 17 S Ct 421 (1897). "The aim of
the Amendment, as this Court has
held, is to preserve the substance of
the common-law right of trial by
jury, a6 distinguished from mere
matters of form or procedure, and
particularly to retain the common-
law distinction between the province
of the court and that of the jury.
. . ." Baltimore & Carolina Line v
Iledman, supra, at 657, 79 L Ed
1636, 55 S Ct 890. Accord, Colgrove
v Battin, 413 US, at 15G157, 37 L
Ed 2d 522, 93 S Ct 2448; Gasotine
Products Co. v Champlin Refining
Co. 283 US 494, 498,75 L Fd 1188,
51 S Ct 513 (1931); Ex parte Peter-
son, 253 US 300, 309, 64 L Ed 919,
40 S Ct 543 (1920). "The Amend-
ment did not bind the federal courts
to the exact procedural incidents or
details ofjury trial according to the
common law of 1791, any more than
it tied them to the common-law sys-
tem of pleading or the specific rules
of evidence then prevailing." Gallo-

way v United States, 319 US, at 390,
87 L Ed 1458, 63 S Ct 1077.

To say that the Seventh Amend-
ment does not tie federal courts to
the exact procedure of the common
law in 1791 does

[4Se US 346]
not imply, however,

that any nominally "procedural"
change can be implemented, regard-
less of its impact on the functions of
the jury. For to sanction creation of
procedural devices which limit the
province of the jury to a greater
degree than permitted at common
law in 1791 is in direct contraven-
tion of the Seventh Amendment. See
Neely v Martin K. Eby Constr. Co.
386 US 377,322,18 L Ed 2d 75,87 Sg, 1072 (1967); Galloway v United
States, supra, at 395, 87 L Ed 1458,
63 S Ct L077; Dimick v Schiedt,
supra, at 487,79 L Ed 603, 55 S Ct
296, 95 ALR 1150; Ex parte Peter-
son, Bupra, at 309-310, U L Frl 919,
40 S Ct 543. And since we deal here
not with the common law qua com-
mon law but with the Constitution,
no amount of argument that the
device provides for more efficiency or
more accuracy or is fairer will save
it if the degree of invasion of the
jury's province is greater than al-
lowed in 1791. To rule otherwise
would effectively permit judicial re
peal of the Seventh Amendment be
cause nearly any change in the prov-
ince of the jury, no matter how dras-
tic the diminution of its functions,
can always be denominated "proce-
dural reform."

The guarantees of the Seventh

12. The majority sryge6t6 that Dimick v
fthiedt is not relevant to the decision in this
caee because it dealt with the second clause of
the Seventh Amendment. Ante, at 336, n 23,
58 L Ed 2d, at 565. I disagee. There is no
intimation in that opinion that the first

clause should be treated any differently from
the eecond. The Dimick Court's respect for
the guarantees of the Seventh Amendment
appliee as much to the first clause as to the
second.

67t



U.S. SUPBEME COURT REPOBTS 58 L &l2d

!

Amendment will prove burdensome
in some instancei; the eivil jury
surely was a burden to the Bndtislr
governors who, in its st€ad, substi_
tuted the vice,admiralty court. But,
as with other provisions of the Bili
of Rights, the onerous nature of the
protection is no license for contract-ing t!" rights secured by theAmendment. Because
''[m]aintenance of the jury as a
fact-finding body is of such- impor-
tance and occupies so firm a place in
our history and jurisprudence . . .

any seeming curtailment of the risht
to a jury trial should be scrutiniLd
with the utmost care.',' Dimick v
!9h1e{t, supra, at 486, Z9 L Ed 608,
55 S Ct 296,95 ALR 1150, quoted in
P_"3"_o_1 'Theatres, Inc. v festover,
q59 US 500, 501, 3 L &t 2d 988, 79 S
ct 948 (1959).

c

-.lu{Sgd by the foregoing princi-
ples, I think it is clear that-peiition-
ers were denied their Seventh
Amendment right to a

l48e us ixTl

this case. Neither .*J:?"S"},ll
the Court doubts that at common
law as it existed in 17g1, petitioners
would have been entitled in the pri
vate action to have a jury determine
whether the proxy statement was
f3|se a-nd_-misleading in the respects
alleged. The reason is that at iom-
mon law in 1791, collateral estoppel
yas.pe1mit-ted only where the plr_
ties in the first action were identical
to, or in privity with, the parties to

the subsequent action.r! It was not
until 1971 that the doctrine of mutu-
ality was abrogated by this Court in
certain limited circumstances. Blon-
der-Tongue Laboratories, Inc. v Uni-
y-e1sity of Illinois Foundation, 402us 313, 28 L Ed 2d, 788,9r S Ct
1434 (L971).t. But developments in
the judge-made doctrine of colateral
estoppel, however salutary, cannot,
consistent with the Seventh Amend-
ment, contract in any material fash-
ion the right to a jury trial that a
defendant would havb enjoyed in
1791. In the instant case, iesort to
the doctrine of collateral estoppel
does more than merely contract'the
right to a jury trial: It eliminates
the right entirely and therefore con-
travenes the Seventh Amendment.

The Court responds, however, that
at common law "a litigant was not
entitled to have a jury [in a subse
quent action at law between the
same parties] determine issues that
h.ad @n previously adjudicated by a
chancellor in equity," and that ,,-pe

titioners have advanced no perrr"-
sive reason . . . why the meaning of
the Seventh Amendment should de
pend on

[.(l9 US iX8]
whether or not mutuality of

parties is present." Ante, at 3BB,
335, 58 L Ed 2d, at f6B, S6E. But
that is tantamount to saying that
since a party would not be entitled
to a jury trial if he brought an egui-
table action, there is no persuasive
reaaon why he should receive a jury
trial on virtually the same issues if

{,
I
1

{

i
,i

t
tI
{

i
I
I
:

lq.S* Smith v Kernochen, ? How l9g, 2lg,
12 L &l 666 0849); Hopkins v Lee, 6 Wheai
-1@, 

113-114, 5 L Ed 218 (1821); F. Buller, An
lrrtroduction to the L,aw Relative to Triis aiNisi Prius'232 Oth d 1g1?)t T. p"uf,", e
Compendium of the [,aw of Evidepce aA tfui J
1806).

ll. The Court's decision in Blonder-Tongue

572

Laboratories, Inc. v University of l[inois
Foundation is, on its facts, timitea to tfre
defensive uee of collateral estoppel in patent
cases. Abandonment of mutuality is a 'recent

development. The case of Bernhard v BanL of
America Nat. Truet & Sav. Assn. lg Cal 2d
8o7, 122 P%1. 892, generally considered the
eemi-nal case adopting the new approach, was
not decided until 1942.

i
I
i



68LEd2d

lt was not
re of mutu-
is Court in
nces. Blon-
lnc. v Uni-
ation, 402
l,91 sct
pments in
I collateral
y, cannot,
[h Amend-
;erial fash-
:ial that a
rnjoyed in
, resort to
I estoppel
,ntract the
eliminates
refore con-
ndment.

rever, that
rt was not
n a subse
:wsen the
ssues that
cated by a
that "pe'

IO persua-
neaning of
ghould de'

rtuality of
r, at 333,
565. But

ying that
e entitled
t an equi
rcrsuasive
ive a jury
l issues if
of Illinois

,itcd to the
el in patent
is a recent

d v Bank of
. r9 Cal 2d
rsidered the
proach. was

PARKLANE HOSIERY C0. v SHORE
439 US 322, fi L Ed 2d 652, 99 S Ct 645

instead he chooses to bring his law-
euit in the nature of a legal action.
The persuasive reagon is that the
Seventh Amendment requires that a
party's right to jury trial which ex-
isted at common law be "preserved"
from incursions by the government
or the judiciary. Whether this Court
believes that use of a jury trial in a
particular instance is necessary, or
fair or repetitive is simply irrele.
vant. If that view is "rigid," it is the
Constitution which commands that
rigidity. To hold otherwise is to re'
write the Seventh Amendment eo
that a party is guaranteed a jury
trial in civil cases unless this Court
thinks that a jury trial would be
inappropriate.

No doubt parallel "procedural re
forms" could be instituted in the
area of criminal jurisprudence,
which would accomplish much the
same sort of expedition of court cal-
endars and congervation of judicial
resources as would the extension of
collateral estoppel in civil litigation.
Government motione for summary
judgment, or for a directed verdict in
favor of the proeecution at the cloee
of the evidence, would presumably
save countless hours of judges' and
jurors' time. It can scarcely be
doubted, though, that such "proce.
dural reforms" would not sunrive
constitutional scrutiny under the
jury trial guarantee of the Sixth
Amendment. Just as the principle of
separation of powers was not incor-
porated by the Framers into the
Constitution in order to promote efr-
ciency or dispatch in the business of
government, the right to a jury trial
was not guaranteed in order to facil-
itate prompt and accurate decision

of lawsuits. The essence of that right
lies in its insistence that a body of
laymen not permanently attached to
the sovereign participate along with
the judge in the fact-finding

t439 US 349I

necessr-
tated by a lawsuit. And that essenoe
is as much a part of the Seventh
Amendment's guarantee in civil
cages as it is of the Sixth Amend-
ment's guarantee in criminal prce-
cutions. Cf. Thiel v Southern Pacific
Co. 328 US 217, 22O,90 L Ed 1181,
66 S Ct 984, 166 ALR 1412 (1946).

Belyrng on Galloway v Unit€d
States, Gasoline Products Co. v
Champlin Refinery Co., and Fidelity
& Deposit Co. v United Statee, 187
us 315, 47 L M L94, 2g S Ct 120
(1902), the Court seems to suggest
that the offensive use of collateral
estoppel in this case is permissible
under the limited principle eet forth
above that, a mere procedural
change that does not invade the
province of the jury and a defen-
dant's right thereto to a greater ex-
tent than authorized by the common
law is permissible. But the Court'e
actions today constitute a far greater
infringement of the defendant's
rights than it ever before has eanc-
tioned. In Galloway, the Court up
held the modern form of directed
verdict against a Seventh Amend-
ment challenge, but it is clear that a
gimilar form of directed verdict ex-
igted at common law in 1791. E. g.,
Beauchamp v Borret, Peake 148, 170
Eng Rep 110 (NP l79D:' Coupey v
Henley, 2 Esp 540, 642,170 Eng Rep
448, 449 (CP 1797).[ The modern
form did not materially alter the

f6. See Hender.eon 302-303 ("ln the Eng-
Iand of 1790 the phrasc 'to direct a verdict'
was common. Further, it was commonplace to
instruct the jury 'that the plaintiff was enti-

tled to recover,' or 'the plaintif must have a
verdict"'); Scott, Trial by Jury and the Re
form of Civil Procedure, 31 Han, L Bev 669,
686 (1918) (case6 cited therein).

679



U.S. SUPREME COURT REPORTS 58LEd2d

function of the jury. Similarly, the
modern device of summarY judgment
was found not to violate the Seventh
Amendment because in 1791 a de-
murrer to the evidence, a procedural
device substantially similar to sum-
mary judgment, was a common Prac-
tice. E. g., Pawling v United States,
4 Cranch 2L9,22L-222,2 L Ed 601
(1808).r8

[439 US 35o]

The procedural devices of
summary judgment and directed ver-
dict are direct descendants of their
common-law antecedents' TheY ac-
complish nothing more than could
have been done at common law, aI-
beit by a more cumbersome Proce-
dure. See also Montgomery Ward &
Co. v Duncan, 311 US 243, 250,85 L
Ed 147, 61 S Ct 189 (1940). And
while at common law there aPPar-
ently was no practice of setting aside
a verdict in part,t? the Court in Gas-

oline Products permitted a partial
retrial of "distinct and separable"
issues because the change in proce-
dure would not impair the substance
of the right to jury trial' 283 US, at
498,75 L Ed 1188, 51 S Ct 513. The
parties in Gasoline Products still en-
joyed the right to have a jury deter-
mine all issues of fact.

By contrast, the develoPment of
nonmutual estoppel is a substantial
departure from the common law and
its use in this case comPletelY de-
prives petitioners of their right to

have a jury determine contested is'
sues of fact. I am simPlY unwilling
to accept the Court's PresumPtion
that the complete extinguishment of
petitioners' right to trial by jury can
Le justified as a mere change in
"procedural incident or detail." Over
40 years ago, Mr. Justice Sutherland
observed in a not dissimilar case:

"[T]his court in a very special sense
is charged with the duty of constru-
ing and upholding the Constitution;
and in the discharge of that imPor'
tant duty, it ever must be alert to
see that a doubtful precedent be not
extended by mere analogY to a dif-
ferent case if the result will be to
weaken or subvert what it conceives
to be a principle of the fundamental
law of the land." Dimick v Schiedt,
293 US, at 485, 79 L Ed 603, 55 S Ct
296,95 ALR 1150.

[43e US 35l]
II

Even accepting, arguendo, the ma'
jority's position that there is no vio
lation of the Seventh Amendment
here, I nonetheless would not sanc-
tion the use of collateral estoppel in
this case. The Court todaY holds:

"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

16. To demur, a Party would admit the
truth of all the facts adduced against him and
every adverse inference that could be drawn
therefrom, and the court would determine
which party ghould receive judgment on the
basis of these admitt€d facts and inferences.
See Slocum v New York Life Ins' Co. 228 US
364, 388, 5? L Ed 879, 33 S Ct 523 (1913);

Gibson v Hunter. 2 H BI 187. L26 Eng Rep

499 (NP 1?93); Henderson 304J05; Scott'
supra, n 15, at 6834&l'

17. The Court in Gasoline Products quoted
l,ord Mansfield, who gtated that when a ver-
dict is correct as to one issue but erroneous as

to another "'for form's sake, we must get

aside the whole verdict Edie v East
India Co. 1 W Bl 2P,5, nB (KB 1761), quoted
283 US. at 498.75 L Ed 1188' 5l S Ct 513.

574



58L&t2d

)ntested is-
, unwilling
resumption
.ishment of
ry jury can
change in
rtail." Over
Sutherland
nilar case:
ecial sense
of constru-
>nstitution;
hat impor-
re alert to
lent be not
y to a dif-
will be to
t conceives
ndamental
v Schiedt,

03, 55 S Ct

lo, the ma-
: is no vie
.mendment
I not sanc-
estoppel in
holds:

ld be that
ntiff could
;he earlier
rr for the
ve or for
lication of
. be unfair

4-305; Scott,

ducts quoted
when a ver-
erroneous as
we must set
&lie v East

1.761), quoted
s ct 513.

PARKLANE HOSIERY CO. r'SHORE
439 US 322,58 L Ed 2d 552, 99 S Ct 645

to a defendant, a trial judge
should not allow the use of offen-
eive collateral estoppel." Ante, at
331, 58 L Ed 2d, at 562.

In my view, it is "unfair" to apply
offensive collateral estoppel where
the party who is sought to be estop
ped has not had an opportunity to
have the facts of his case determined
by a jury. Since in this case petition-
ers were not entitled to a jury trial
in the Securities and Exchange Com-
mission (SEC) lawsuit,ts I would not
estop them from relitigating the is-
sues determined in the SEC suit
before a jury in the private action. I
believe that several factors militate
in favor of this result.

First, the use of offensive collat-
eral estoppel in this case runs coun-
ter to the strong federal policy favor-
ing jury trials, even if it does not, as
the majority holds, violate the Sev-
enth Amendment. The Court's deci-
eion in Beacon Theatres,Inc. v West-
over, 359 US 500, 3 L Ed 2d 988, 79
S Ct 948 (1959), exemplifies that
policy. In Beacon Theatres the Court
held that where both equitable and
legal claims or defenses are pre.
sented in a single case, "only under
the most imperative circumstances,

circumstances which in view of the
flexible procedures of the Federal
Rules we cannot now anticipate, can
the right to a jury trial of legal
issues be lost through prior determi-
nation of equitable claims."

[439 US 362]

Id., at
51L511, 3 L Ed 2d 988, 79 S Ct
948.10 And in Jacob v New York, 315
us 752, 75?-753,96 L Ed 1166, 62 S
Ct 854 (1942), the Court stated: "The
right of jury trial in civil cases at
common law is a basic and funda-
mental feature of our system of fed-
eral jurisprudence which is pre
tected by the Seventh Amendment.
A right so fundamental and sacred
to the citizen, whether guaranteed
by the Constitution or provided by
statute, should be jealously guarded
by the courts." Accord, Simler v
Conner, 372 US 22L,222,9 L Ed 2d
691, 83 S Ct 609 (1963); Byrd v Blue
Ridge Rural Electric Cooperative,
Inc. 356 US 525, 537-539, 2 L Ed, 2d
953, 78 S Ct 893 (1958) (strong fed-
eral policy in favor ofjuries requires
jury trials in diversity cases, regard-
less of state practice). Today's deci-
sion will mean that in a large num-
ber of private cases defendants will
no longer enjoy the right to jury

18. I agree with the Court that "petitioners
did not have a right to a jury trial in the
equitable iqiunctive action brought by the
SEC." Ante, at 338 n 24,58 L Ed 2d, at 566.

19. Meeker v Ambassador Oil Corp. 375 US
160, 11 L Ed %t 26L, U S Ct 273 (1963) (per
curiam), is a cae€ where the doctrine of collat-
eral eatoppel yielded to the right to a jury
trial. In Meeker, plaintiffs asserted both equi-
table and legal claims, which preaented com-
mon issues, and demanded a jury trial. The
trial court tried the eguitable claim first, and
decided that claim, and the common isaues,
adversely to plaintiffs. As a result, it held
that plaintiffs were precluded from relitigat-
ing thoee same issues before a jury on their
legal claim 308 F2d 875, 884 (CA10 1962).

Plaintiffs appealed, allegng a denial of their
right to a jury trial, but the Tenth Circuit
affirmed the trial court. This Court reversed
the Court of Appeals on the basis of Beacon
Theatres, Inc. v Westover, 359 US 500, 3 L Ed
2d 988, 79 S Ct 948 (1959), and Dairy Queen,
Inc. v Wood, 369 US 469, 8 L Ed %1. 44, 82 S
Ct 894 (1962), even though, unlike thoee case6,
the equitable action in Meeker already had
been tried and the common issuet det€rmined
by the court. Thus, even though the plainti.ffs
in Meeker had received a "full and fair"
opportunity to try the common iesues in the
prior equitable action, they nonetheless were
given the opportunity to retry thoee issues
before a jury. Today's decieion is totally incon-
sist€nt with Meeker and the Court fails to
explain this inconsistencl'.

675



U.S. SUPREME COURT REPORTS 58LEd2d

trial.D Neither the Court nor respon-
dent has adverted or cited to any
unmanageable problems that have
resulted

[439 US 363]
from according defendants

jury trials in such casies. I simply see
no "imperative circumstances" re-
quiring this wholesale abrogation of
jury trials.2r

Second, I believe that the opportu-
nity for a jury trial in the second
action could easily lead to a different
result from that obtained in the first
action before the court and therefore
that it is unfair to estop petitioners
from relitigating the issues before a
jury. This is the position adopted in
the Restatement (Second) of Judg-
ments, which disapproves of the ap
plication of offensive collateral estop
pel where the defendant has an op
portunity for a jury trial in the sec-
ond lawsuit that was not available
in the first action.z The Court ac-
cepts the proposition that it is unfair
to apply offensive collateral estoppel
"where the second action affords the
defendant procedural opportunities
unavailable in the first action that
could readily cause a diferent re
sult." Ante, at 331, 58 L Ed 2d, at
562. Differences in discovery oppor-
tunities between the two actions are
cited as examples of situations
where it would be unfair to permit

offensive collateral estoppel. Ante, at
331, n 15, 58 L Frl 2d, aL 562. But in
the Court's view, the fact that pe-
titioners would have been entitledto
a jury trial in the present action is
not such a "procedural opportuni-
tfu]" because "the presence or ab-
sence of a jury as factfinder is basi-
cally neutraf quite unlike, for exam-
ple, the

[439 US 354]
necessity of defending

the first lawsuit in an inconvenient
forum." Ante, at 332 n 19, 58 L Fd
2d, at 563 (emphasis added).

As is evident from the prior brief
discussion of the development of the
civil jury trial guarantee in this
country, those who drafted the Dec-
laration of Independence and de
bated so passionately the proposed
C,onstitution during the ratification
period, would indeed be astounded to
learn that the presence or absence of
a jury is merely "neutral," whereas
the availability of discovery, a device
unmentioned in the Constitution,
-may be controlling. It is precisely
because the Framers believed that
they might receive a difierent result
at the hands of a jury of their peers
than at the mercy of the sovereign's
judges, that the Seventh Amend-
ment was adopted. And I suspect
that anyone who litigates cases be-
fore juries in the 1970's would be
equally amazed to hear of the sup

20. The Court's decigion today may well
extend to other areas, such as antitrust, Iabor,
emplo5rment discrimination, consumer protec-
tion, and the like, where a private plaintiff
may sue for damages based on the eame or
similar violations that are the eubject of gov-
ernment actions.

2f. This is not to say that C,ongrees cannot
commit enforcement of statutorilv created
rights to an "administrative process or 6pe
cialized court of equity." Curtis v Loether, 4lS
US i89, 195, 39 L Ed 2d Zffi, 94 S Ct lOOs
(1974); 

,eee Atlas Roofing Co.r Inc. v Occupa-
tional Safety & Health Rerie* Comm'n, lS0
us 442, 51 L Ed 2d 4U,97 S Ct L26t ]1977 t:
Katchen v l,andy, 382 US 323, t5 L Ed %t

676

391, 86 S Ct 467 (1966); NLRB v Jones &
L,aughlin Steel Corp. 3Ol US 1, 8l L Ed 893,
57 S Ct 615, 108 ALR 1352 (1937).

22. Restatement (Second) of Judgments
$ 88(2), Comment d (Tent Draft No. 2, Apr. 15,
1975). Citing Rachal v Hill, 435 F2d 59 (CA5
1970), cert denied, 403 US W4, 29 L Ed 2d
680, 9l S Ct 2203 (1971), the Reporter's Note
states: "The di.fferences between the proce.
duret available in the 6rst and eecond actions,
while not sufrcient to deny issue preclueion
between the same parties, ma-v warrant a
refusal to carry over preclusion to an action
involving another part.v. " Reetatement, supra,
at 100.



Ed 2d

Ite, at
lut in
rt pe.
led to
ion ie
rtuni-
rr ab
r basi
exarn-

,nding
:nient
LEd

' brief
of the
r this
: Dec-
dde
rposed
cation
ded to
nce of
tereas
device
;ution,
rcisely
I that
result
peerE

:eign's
mend-
uspect
es be
rld be
e suP

Igments
Apr. 15,
69 (CAs
,Edzit
r's Note
) proce
actions,
eclueion
rrant a
c action
!, supra,

PARKLANE HOSIERY CO. v SHORE
439 US 322.58 L &t 2d 552, 99 S Ct 645

Iones &
&l 893,

posed lack of distinction between
trial by court and trial by jury. The
Court can cite no authority in sup-
port of this curious proposition. The
merits of civil juries have been long
debated, but I suspect that juries
have never been accused of being
merely "neutral" factors.B

Contrary to the majority's supposi-
tion, juries can make a difference,
and our cases have, before today at
least, recognized this obvious fact.
Thus, in Colgrove v Battin, 413 US,
at 157,37 L Ed 2d 522,93 S Ct 2448,
we stated that "the purpose of the
jury trial in civil cases [is] to
assure a fair and equitable resolu-
tion of factual issues, Gasoline Prod-
ucts Co. v Champlin Co. 283 US 494,
498, [75 L Ed 1188, 51 S Ct 513]
(1931) And in Byrd v Blue
Ridge

[43e US 355]

Rural Electrical Cooperative,
supra, at 537,2 L Ed 2d 953, 78 S Ct
893, the Court conceded that "the
nature of the tribunal which tries
issues may be important in the en-
forcement of the parcel of rights
making up a cause of action or de'
fense . . . It may well be that in
the instant personal-injury case the
outcome would be substantially af-
fected by whether the issue of immu-
nity is decided by a judge or a jury."
See Curtis v Loether, 415 US, at 198,
39 L Ed 2d 260,94 S Ct 1005; cf.
Duncan v Louisiana, 391 US 145,
156, 20 L Ed 2d 491, 88 S Ct 1444,

45 Ohio Ops 2d 198 (1968). Jurors
bring to a case their common sense
and community values; their "very
inexperience is an asset because it
secures a fresh perception of each
trial, avoiding the stereotypes said to
infect the judicial eye." H. Kalven &
H. Zeisel, The American Jury 8
(1966).

The ultimate irony of today's deci-
sion is that its potential for signifi-
cantly conserving the resources of
either the litigants or the judiciary
is doubtful at best. That being the
case, I see absolutely no reason to
frustrate so cavalierly the important
federal policy favoring jury decisions
of disputed fact questions. The in-
stant case is an apt example of the
minimal savings that will be accom-
plished by the Court's decision. As
the Court admits, even if petitioners
are collaterally estopped from reliti-
gating whether the proxy was mate-
rially false and misleading, they are
still entitled to have a jury deter-
mine whether respondent was in-
jured by the alleged misstatements
and the amount of damages, if any,
sustained by respondent. Ante, at
325 n 2,58L Ed 2d, at 558. Thus, a
jury must be impaneled in this case
in any event. The time saved by not
trying the issue of whether the
proxy was materially false and mis-
leading before the jury is likely to be
insubstantial.% It is just as probable
that today's decision will have the
result of coercing defendants to

23. See, e. g., Hearings on Recording of
Jury Deliberations before the Subcommittee
to Investigat€ the Administration of the Inter-
nal Security Act and Other Internal Security
[,aws of the Senate Committee on the Judi-
ciary, 84th Cong, 1st Sess, 63-81 (1955) (thor-
ough summary of arguments pro and con on
jury trials and an extensive bibliographyt: H.
Kalven & H. Zeisel, The American Jurv 4 p 2
rl966t 6ibliography't: Redish, Seventh Amend-
ment Right to Jur;- Trial: A Studl in the

lrrationality of Rational Decision Making, 70
Nw U L Rev 486, 502-508 (1975) (discussion of
arguments for and against juries).

24. Much of the delay in jury trials is
attributed to the jury selection, voir dire, and
the charge. See H. Z€isel, H. Kalven, & B.
Buchholz. Delay in the Court 79 tl959t. None
of these deia-ving factors will be avoided by
toda5"s decision.

577



U.S. SUPREME COURT REPORTS 58L&t2d
agree to consent orders or settle-
ments

[43e US 356]
in agency enforcement actionin order to preserve their right tojury trial in the private actions. In

that event, the Court, for no compel-
ling reason, will have simply ad'<teda powerful club to the administra_
taive agencies' arsenals that even
Congress was unwilling to provide
them.

EDITOR'S NOTE

An annotation on "Modern status of mutuality of estopper requirement forapplication of doctrine^of collateral estoppel in federal ci"it caiJio stranger to priorjudgment," appears p gB8, infra.

578