Limiting the Last-in-Time Rule for Judgments

49 Pages Posted: 20 Jun 2016 Last revised: 21 Aug 2016

Kevin M. Clermont

Cornell Law School

Date Written: June 20, 2016

Abstract

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule indeed should not apply if the first judgment is American and the second judgment comes from a foreign-nation court. To establish those contentions, this Article must go to the depths of res judicata and conflicts law, not only here under our last-in-time rule but also abroad where a first-in-time rule reigns. The Article resurfaces from the depths to rearrange the puzzle pieces into a simple reformulation—an elaboration rather than an amendment—of the American law on inconsistent judgments.

Keywords: civil procedure, res judicata, preclusion, conflict of laws, international litigation

JEL Classification: K41

Suggested Citation

Clermont, Kevin M., Limiting the Last-in-Time Rule for Judgments (June 20, 2016). Cornell Legal Studies Research Paper No. 16-21. Available at SSRN: https://ssrn.com/abstract=2798182

Kevin M. Clermont (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-5189 (Phone)
607-255-7193 (Fax)

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