The binding effect of a judgment is said to be based upon the principle that justice and expediency demand that a person who has had his "day in court" should not be permitted to relitigate the same issues in a subsequent action. However, a general rule existing concurrently with this principle has been that a person is not entitled to claim the benefits of an adjudication of any matter decided in an action to which he was not a party or privy to a party. These benefits have often been denied for the sole reason that such a person would not have been bound by a judgment in that action adverse to his interest and that granting such a windfall would violate the principle that "estoppels must be mutual." As a result, a person who has already had his "day in court" and lost is given the opportunity to relitigate the same issues with a different opponent who is denied the right to rely on the former action. This troublesome inconsistency has led several courts to repudiate the concept that issues determined in one suit cannot be taken as conclusively established in a subsequent action unless both parties were mutually bound by the former judgment. As such, they have allowed a litigant to assert the findings of a previous action regardless of the fact that the person was not a party or privy to a party in that action and could not have been bound by an unfavorable judgment. The decisions presented in this article represent a widespread dissatisfaction with the rule of mutuality, and these are discussed briefly before examining the approach taken by the Nebraska courts.
II. Abandonment of the Rule
III. Nebraska Law
Gailyn L. Larsen,
Mutuality of Estoppel: Its Status in Nebraska,
45 Neb. L. Rev. 613
Available at: http://digitalcommons.unl.edu/nlr/vol45/iss3/11