ALITO, J., dissenting
grounds, he contends, neither ground should be regarded as having an issue-preclusive effect. This argument raises an important question that this Court has never decided and one on which the First and Second Restatements of Judgments take differing views. According to the First Restatement, a judgment based on alternative grounds “is determinative on both grounds, although either alone would have been sufficient to support the judgment.” Restatement of Judgments §68, Comment n (1942). Other authorities agree. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4421, p. 613 (3d ed. 2016) (noting “substantial support in federal decisions” for this approach).[1] But the Second Restatement reversed this view, recommending that a judgment based on the determination of two independent issues “is not conclusive with respect to either issue standing alone.” §27, Comment i, at 259.
There is scant explanation for this change in position beyond a reference in the Reporter’s Note to a single decision of the United States Court of Appeals for the Second Circuit. Id., Reporter’s Note, Comment i, at 270 (discussing Halpern v. Schwartz, 426 F. 2d 102 (1970)). But even that court has subsequently explained that Halpern was “not intended to have . . . broad impact outside the [bankruptcy] context,” and it continues to follow the rule of the First Restatement “in circumstances divergent from those in Halpern.” Winters v. Lavine, 574 F. 2d 46, 67 (1978). It thus appears that in this portion of the Second Restatement, the Reporters adopted a prescriptive rather than a descriptive approach. In such situations, the Restatement loses much of its value. See Kansas v. Nebraska, 574 U. S.
- ↑ See, e.g., Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F. 3d 244, 251–257 (CA3 2006) (collecting cases); In re Westgate-California Corp., 642 F. 2d 1174, 1176–1177 (CA9 1981); Winters v. Lavine, 574 F. 2d 46, 66–67 (CA2 1978); Irving Nat’l Bank v. Law, 10 F. 2d 721, 724 (CA2 1926) (Hand, J.).
