Gulfstream Aerospace Corporation v. Mayacamas Corporation Page 2

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Media for Gulfstream Aerospace Corporation v. Mayacamas Corporation

Audio Transcription for Oral Argument - December 07, 1987 in Gulfstream Aerospace Corporation v. Mayacamas Corporation

Elliot L. Bien:

If Mayacamas does not take an appeal and if a Federal Trial Judge, District Judge finds res judicata to be applicable, and if there's a dispute that is resolved in favor of res judicata on appeal, then I think technical mootness would apply.

However, I would still argue, as I would argue now, but I think there's more strength--

Antonin Scalia:

Wait a minute.

Before you do that, why do each one of those things have to happen.

Part of your argument is that it would be res judicata.

I mean, that's essential to your whole contention here.

Elliot L. Bien:

--Well, we don't reach the res judicata issue here.

Antonin Scalia:

You don't think that's essential to your contention that this is duplicative litigation?

Elliot L. Bien:

Well, assuming that a final decision in one forum or the other, let's say in a State forum, was reached and there was finality, then we would certainly argue that--

Antonin Scalia:

Right.

So res judicata is assumed.

So isn't it the case then that if an appeal is not taken this is over?

If Mayacamas does not take an appeal, this litigation is over?

Elliot L. Bien:

--I think the judgment would have to be afforded full faith and credit in the Federal Court, and that would effectively end the dispute.

Unless there were some reason why a res judicata would not follow but I can't envision any such reason at this point.

Antonin Scalia:

Indeed, you're arguing that there is res judicata, that's part of your argument?

Elliot L. Bien:

Well, again, I don't believe that the reason to avoid duplicative litigation is that the prospect of a res judicata now here in the Federal Court, but in either Court, creates the kind of tension and pressure on both courts that's undesirable.

So I don't know if I'm quibbling with you, but I'm saying that we don't argue the, and in this particular case, we haven't argued it in the briefs and I'm not arguing it this morning what the specific res judicata effect would be.

I assume, without arguing, that there would be a res judicata effect eventually.

But I do want to address the mootness problem in one more step and I think that even if the res judicata did arise as a result of the verdict that was reached in Georgia, I think you have a classic situation where the issues now before this Court would be capable of repetition even as addressed to Gulfstream which is a party which is a large corporation may face that situation.

And the issue always arises at the beginning of the lawsuit.

And I think it's a classical case where it could evade review if even a technical mootness would have the result of--

Antonin Scalia:

Between these parties?

These parties are planning to go through this--

Elliot L. Bien:

--Not these particular parties.

Antonin Scalia:

--But isn't that what the capable of repetition requires?

Elliot L. Bien:

Well, I believe that under the Roe v. Wade in the pregnancy situation and some others, that it doesn't necessarily have to affect the particular party.

Antonin Scalia:

But what of the some others?

Elliot L. Bien:

I believe the Blumstein case, the Dunn v. Blumstein, where the challenge to election rules where even if the particular plaintiff that brought the case may not have been in a position to vote in a state with a challenged election procedure that there might have been other voters who are facing the exact same situation which if it was not adjudicated by this Court might once again have the issue evade with you.

But I don't believe we'll have to get that far.