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Full-Text Articles in Law

Declaratory Judgments In New Jersey, Edwin Borchard Jan 1932

Declaratory Judgments In New Jersey, Edwin Borchard

Faculty Scholarship Series

New Jersey was the State which, by the statute of 1915 and the case of In re Ungaro’s Will, began the current movement for the introduction of the declaratory judgment into American procedure. Appreciation of its beneficent effect is attested by the fact that thirty-one American jurisdictions have now adopted it as an aid in the solution of contested issues of law, before one party or the other has incurred the risk of loss or damage by acting upon his own interpretation of his rights under a contract, will, statute, or other legal instrument or relation. Its history in ...


Judicial Relief For Peril And Insecurity, Edwin Borchard Jan 1932

Judicial Relief For Peril And Insecurity, Edwin Borchard

Faculty Scholarship Series

In the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that ...


Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin Borchard Jan 1932

Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin Borchard

Faculty Scholarship Series

In a recent Michigan case the seller of a boiler, claiming a chattel mortgage therein for the unpaid purchase price, brought an action against the person who had bought the boiler at a bankruptcy sale of the property of the original buyer for a declaration that the plaintiff had the right to possession, or in the alternative, that the defendant was under a duty to pay the balance of the original purchase price. The defendant claimed to be the owner free of the mortgage. A majority of the Michigan Supreme Court, on its own motion, for the propriety of the ...