We thus conclude that the entire controversy doctrine appropriately encompasses the mandatory joinder of parties.
Mandatory joinder offers both kinds of advantages, along with the power of courts to insist upon it when the parties are indifferent or even opposed to it.
(125) The broadening and strengthening of mandatory joinder would supplement the increased efficiency resulting from a one-action rule.
(142) In order to avoid as many problematic circumstances as possible, I propose that a state adopting a preclusive system of enforcing mandatory joinder, such as the Kansas one-action rule, should expressly look to interpretations of the rule that have been developed over time in Kansas.
Judge Corodemus held that plaintiffs' attempt to limit relief created an "intolerable position" for the court, which is prohibited by New Jersey's entire controversy doctrine requiring mandatory joinder
of all claims that arise from the same transaction.
(Of course, to the extent that the two robberies grew out of the same factual "transaction" with a high degree of evidentiary overlap and a small amount of evidentiary divergence, the Due Process Clause could, as noted, be construed as a constitutionally based mandatory joinder principle.)(58) Even if the identity of the robbery victim and the day of the robbery are not formal elements of the offense of robbery--in other words, even if the legal elements in Robert's two trials are identical--Robert would have no good double jeopardy defense.
Why is Blockburger's mandatory joinder rule limited to greater and lesser-included offenses?(75) If the issue is the possible vexation and harassment and vindictiveness of bifurcated proceedings, why is Robin's case so different from Roberta's and Robert's?
Because of this, whatever constitutional mandatory joinder rules are applicable in Roberta's and Robert's case must be flexible, fact- and case-specific rules of due process, rather than global, rigid, bright-line rules of double jeopardy.
The Court also hinted that even if the government had such evidence, it should not necessarily have to tip off the defendant about ongoing undercover operations in order to prosecute for an initial predicate offense.(86) (A still broader reading of Diaz.) And most strikingly, the Court began its entire analysis by saying: "Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the `same' offense as one of the predicate offenses."(87) This is the broadest reading of Diaz--and a reading which, if taken seriously, demolishes Blockburger, and leaves us instead with a more supple fact- and case-specific due process analysis asking when mandatory joinder makes functional good sense to protect defendants against prosecutorial manipulation and harassment.
Thus, the viable prosecutions lost due to the initial uncertainty of a mandatory joinder rule should be minimal.
Unacceptable verdicts will continue to occur under a mandatory joinder regime.
Here again, a statutory approach to a mandatory joinder rule has its advantages.