Freer on Defense Preclusion

Rich Freer has posted on SSRN a draft of his article, "Defense Preclusion": Exploring a Narrow Gap in Preclusion Law, 40 Rev. Litig. (forthcoming 2021). Here's the abstract:

All litigators know something about claim and issue preclusion. But “defense preclusion” does not ring a bell, even for most civil procedure enthusiasts. Accordingly, the Supreme Court’s 2020 decision in Lucky Brand Dungarees v. Marcel Fashions Group was doubly surprising. Not only did the Court use the term “defense preclusion” for the first time; it also told us that the doctrine is vibrant enough to have generated a split of authority.

Defense preclusion fills a little-recognized gap in traditional preclusion doctrine. Claim preclusion requires a claimant to seek, in Case 1, all rights to relief encompassed in the claim asserted. If that claimant brings Case 2 on the same claim, the doctrine precludes her from seeking relief she could have sought in Case 1. But claim preclusion applies only to claimants, not defendants. Defense preclusion is the defendant analogue: it bars a defendant in Case 2 from asserting a defense she could have raised in Case 1.

Lucky Brand establishes that defense preclusion is occasionally appropriate but does not define the limits of the doctrine. My goals are to (1) define defense preclusion by situating it within the broader context of preclusion law and (2) outline the scope of the doctrine, based upon suggestions in Lucky Brand and core principles of preclusion. Defense preclusion is narrow, likely to arise only in cases involving a distinct minority approach to claim preclusion and particular types of contract claims.