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Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand Jan 2018

Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand

Articles

In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …


Federal Judicial Center International Litigation Guide: Recognition And Enforcement Of Foreign Judgments, Ronald A. Brand Jan 2013

Federal Judicial Center International Litigation Guide: Recognition And Enforcement Of Foreign Judgments, Ronald A. Brand

Articles

This publication was prepared for the U.S. Federal Judicial Center as a guide for Federal Judges on the recognition and enforcement of foreign judgments. It covers applicable law in federal courts, the issues raised when a foreign judgments recognition case, grounds for non-recognition (and their sources in the law), and recent developments that may affect future adjustments in the rules. The law in those states that have adopted one of the Uniform Acts is covered, as is the law in states that remain under a common law system for recognition and enforcement of judgments. Also covered is the 2005 Hague …


The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz Jan 2010

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

Articles

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …


Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane Jan 2009

Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane

Articles

Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …


Corporate Judgement Proofing: A Response To Lynn Lopucki's 'The Death Of Liability', James J. White Jan 1998

Corporate Judgement Proofing: A Response To Lynn Lopucki's 'The Death Of Liability', James J. White

Articles

In "The Death of Liability" Professor Lynn M. LoPucki argues that American businesses are rendering themselves judgment proof.- Using the metaphor of a poker game, Professor LoPucki claims American businesses are increasingly able to participate in the poker game without putting "chips in the pot." He argues that it has become easier for American companies to play the game without having chips in the pot because of the ease with which a modern debtor can grant secured credit, because of the growth of the peculiar form of sale known as asset securitization, because foreign havens for secreting assets are now …


Comment On Powell V. Mccormack, Terrance Sandalow Jan 1969

Comment On Powell V. Mccormack, Terrance Sandalow

Articles

The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …


Unrecognized Government Or State In English And American Law (Part 2), Edwin D. Dickinson Jan 1923

Unrecognized Government Or State In English And American Law (Part 2), Edwin D. Dickinson

Articles

PROBABLY no one in the British Empire or the United States would question the doctrine that it belongs exclusively to the political departments to recognize new governments or states. The difficulties involved are those which arise in the application of a doctrine so broadly stated. Not every situation involving an unrecognized government or state requires the decision of a question of recognition. If the decision of a political question is not involved, then it is entirely proper for the courts to take cognizance of a mere de facto government or state. In what situations may the courts appropriately take account …


Unrecognized Government Or State In English And American Law (Part 1), Edwin D. Dickinson Jan 1923

Unrecognized Government Or State In English And American Law (Part 1), Edwin D. Dickinson

Articles

From the decision of this novel case, reported as Pelzer v. United Dredging Co., we may infer that the New York courts regard unrecognized Mexico as a sort of legal vacuum. In granting the corporation's motion for judgment on the pleadings, the Supreme Court said: "The administratrix plaintiff is an officer of a foreign court. It is syllogistically true that if the foreign court has no recognized power here she may not assert a right derived through her appointment therefrom. The Mexican government is not de facto here, since recognition alone can make it so. It may have all the …


Declaratory Judgments, Edson R. Sunderland Jan 1923

Declaratory Judgments, Edson R. Sunderland

Articles

The Connecticut legislature passed an act in 1921 authorizing courts to make binding declarations of rights. The act was attacked as unconstitutional on the same ground raised by the supreme court of Michigan against the Michigan Declaratory Judgment Act in the case of Anway v. Railway Co., 211 Mich. 592, 12 A. L. R. 26i namely, that declaring rights was not a judicial function. But the Supreme Court of Errors of Connecticut sustdined the act as in no way contravening the constitution.


Declaratory Judgments, Edson R. Sunderland Jan 1922

Declaratory Judgments, Edson R. Sunderland

Articles

The subject of declaratory judgments has received a great deal of attention in the United States during the last few years, and the interest aroused has resulted in the enactment of statutes in a considerable number of states authorizing courts to declare the rights of parties in cases where relief of the conventional sort is inadequate, inconvenient or impossible. Such judgments may now be obtained in California, St I92I, ch. 463; Connecticut, P. A. 1921, ch. 258; Florida, Laws 1919, No. 75; Hawaii, Laws 1921, Act 162; Kansas, Laws 1921, cl. 168; New Jersey, Laws 1915, ch. 116, Sec. 7; …


Attorney's Lien For Services - Set-Off Of Judgments, Edson R. Sunderland Jan 1920

Attorney's Lien For Services - Set-Off Of Judgments, Edson R. Sunderland

Articles

Anglo-Saxon judges, as members of the legal profession, have shown an admirable freedom from professional bias and class selfishness in dealing with questions involving the rights and privileges of members of their profession. With every opportunity offered for treating lawyers as a favored class, they have been able to maintain a detached and objective attitude toward them. Indeed, the courts seem to have preferred to be charged with excessive severity in dealing with their brethren of the bar rather than give the slightest ground for suspicion that they were capitalizing their power in the interest of the legal fraternity.


Extraterritorial Effect Of The Equitable Decree, Willard T. Barbour May 1919

Extraterritorial Effect Of The Equitable Decree, Willard T. Barbour

Articles

ANYONE whom the study of equity has led into the by-paths of V Canon Law will recall that the Sext ends with a splendid array of imposing maxims, not improbably the source of the Latin maxims with which every lawyer is familiar. The inveterate habit formed by the ecclesiastics of expressing a legal principle in a short and crisp formula persisted when they came into the courts of law and is peculiarly in evidence among the chancellors of the fifteenth century. What may at first have been merely casual became through repetition a habit and the result has been to …


A New Function For Courts - Declaring The Rights Of Parties, Edson R. Sunderland Jan 1919

A New Function For Courts - Declaring The Rights Of Parties, Edson R. Sunderland

Articles

In a recent opinion of the Supreme Court of the United States Justice Holmes makes this interesting observation:- "The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun." Paraphrased, the statement comes to this: In early times the basis of jurisdiction is the existence and the constant assertion of physical power over the parties to the action, but as civilization advances the mere existence of such power tends to make its exercise less and less essential.


Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates Jan 1918

Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates

Articles

Four and one-half centuries later the "sovereign state" of Virginia sued the "sovereign state" of West Virginia to recover a sum of money alleged to be due upon the agreement of West Virginia to assume its proportionate share of the debt of the old state of Virginia. The suit was brought in the Supreme Court of the United States, which after prolonged consideration rendered judgment for the plaintiff. No execution or other compulsory process was issued, however. But now after delays for various reasons and pretexts urged by West Virginia the court is compelled to face the problem of what …


Full Faith And Credit And Jurisdiction, Willard T. Barbour Jan 1918

Full Faith And Credit And Jurisdiction, Willard T. Barbour

Articles

The judgment of a sister state, when assailed by collateral attack, is often said to occupy a position intermediate between foreign and domestic judgments. Though the older American cases were inclined to examine into the merits of any foreign judgment, the present tendency is toward the adoption of the English view according to which a foreign judgment may be attacked collaterally only for want of jurisdiction or fraud. Dicey, Conflict of Laws (ed. 2) Ch. XVII; see note to Tremblay v. Aetna Life Insurance Co., 97 Me. 547, in 94 Am. St. Rep. 521, 538. But whereas any statement of …


Acquiring Jurisdiction In Garnishment Proceedings, John R. Rood Jan 1918

Acquiring Jurisdiction In Garnishment Proceedings, John R. Rood

Articles

Garnishment is a proceeding provided by statutes found in every state, for the purpose of laying hold of something belonging to a defendant or judgment debtor but actually in the hands of someone else, and appropriating it to pay the debt due from the defendant or judgment debtor. If the proceeding is instituted ancillary to a pending suit, and before judgment, it is a species of attachment. If it is issued ancillary to a judgment already recovered it is a species of execution. If the third person summoned as garnishee is merely bailee of property belonging to the judgment debtor …


Cost Of Public Justice, John R. Rood Jan 1918

Cost Of Public Justice, John R. Rood

Articles

The common citizen who becomes victim of a wrong and seeks redress in the courts of America soon finds by bitter experience that it is better to bear those ills we have than go to law. The expense is more than the thing is worth. The result depends on who has the longest purse, the most endurance, and the shrewdest lawyer, and little on the merits of the case. When he gets to court he finds his remaining money is being spent, not in the trial of his case, but in deciding whether an absque hoc is a sine que …


A Modern Evolution In Remedial Rights - The Declaratory Judgment, Edson R. Sunderland Dec 1917

A Modern Evolution In Remedial Rights - The Declaratory Judgment, Edson R. Sunderland

Articles

In early times the basis of jurisdiction is the existence and the constant assertion of physical power over the parties to the action, but as civilization advances the mere existence of such power tends to make its exercise less and less essential. If this is true, it must be because there is something in civilization itself which diminishes the necessity for a resort to actual force in sustaining the judgments of courts. And it is quite clear that civilization does supply an element which is theoretically capable of entirely supplanting the exercise of force in the assertion of jurisdiction. This …


Recovery Of Money Paid Under Duress Of Legal Proceedings In Michigan, Edgar N. Durfee Jan 1917

Recovery Of Money Paid Under Duress Of Legal Proceedings In Michigan, Edgar N. Durfee

Articles

THE case of Welch v. Beeching, recently decided by the Supreme Court of Michigan, raises puzzling problems conconcerning the recovery of money paid under pressure of legal proceedings. It is the purpose of this paper to give that case a more adequate setting, in relation to the whole field of law to which it pertains, than was provided by the brief opinion of the court. We shall not attempt to exhaust the authorities, nor to present a rounded treatment of the whole subject touched upon.


Execution Sales As Preferential Transfers In Bankruptcy, Evans Holbrook Jan 1917

Execution Sales As Preferential Transfers In Bankruptcy, Evans Holbrook

Articles

In the recent case of Golden Hill Distilling Co. v. Logue, 243 Fed. 342, the Circuit Court of Appeals for the Sixth Circuit holds that a "creditor who recovers a judgment, by consent or in invitum, and by execution sale collects his money within four months preceding bankruptcy, and with reasonable cause to believe [that a preference would thereby be effected] receives a voidable preference, which he must repay to the trustee." This question is one that has vexed the bankruptcy courts ever since the Supreme Court of the United States in Clarke v. Larremore, 188 U. S. 486, declined …


What Service Gives Jurisdiction In Person, John R. Rood Jan 1917

What Service Gives Jurisdiction In Person, John R. Rood

Articles

On March 6th, 1917, the Supreme Court of the United States, in the case of McDonald v. Mabee, reversing the decision of the Supreme Court of Texas, in 175 S. W. 676, held that a judgment in foreclosure proceedings in which the defendant was served only by publication did not merge the cause of action so as to bar a suit on the original notes for the balance unpaid by the sale of the mortgaged property on the foreclosure, although the statute of the state declared such service sufficient to give jurisdiction in personam, and the defendant was a citizen …


The Sheriff's Return, Edson R. Sunderland Jan 1916

The Sheriff's Return, Edson R. Sunderland

Articles

When William the Conqueror found himself military master of Britain, he was confronted by a governmental problem quite different from that which has usually accompanied foreign conquest. He did not subdue a nation already organized, substituting his power for that of its former ruler in the conventional way of conquerors. Britain was a geographical unit but politically and socially it was a congeries of loosely related communities. The natural law of survival of the fittest normally operates upon peoples as upon individuals, and develops centralized power as a means of self-preservation. But Britain had a substitute for this. The sheltering …


Jurisdictional Facts, John R. Rood Jan 1915

Jurisdictional Facts, John R. Rood

Articles

The advance sheets of the Northwestern Reporter for January 29th, 1915, contain two cases in which a supreme court declared proceedings that had been carried through to judgment void, (not merely voidable) because of the lack of a fact which the supreme court regarded as jurisdictional, (Sandusky Grain Co. v. Sanilac Circuit Judge (Mich. 1915), 150 N. W. 329 and Bombolis v. Minn. & St. L. R. Co. (Minn. 1914), 150 N. W. 385), and another case in which the court was equally divided as to whether the essential facts appeared (Fisher et al v. Gardnier et al. (Mich. 1915), …


Is A Judgment Open To Collateral Attack If Rendered Without Written Pleadings As Required By Statute, Or If The Writings Do Not Comply With The Statutory Requirements?, John R. Rood Jan 1912

Is A Judgment Open To Collateral Attack If Rendered Without Written Pleadings As Required By Statute, Or If The Writings Do Not Comply With The Statutory Requirements?, John R. Rood

Articles

It is believed that no good reason can be assigned for answering the above question in the affirmative. Certainly none has yet been discovered in a careful search of the cases involving the point. And yet the assurance and unanimity with which lawyers and judges give the affirmative answer to it on first thought is indeed remarkable. For instance, Mr. Justice FIELD in speaking for the Supreme Court of the United States, on the question as to whether a judgment is subject to collateral attack if one served with process is not permitted to make any defense when he appears …


Preserving A Special Appearance, Edson R. Sunderland Jan 1911

Preserving A Special Appearance, Edson R. Sunderland

Articles

No personal judgment against a defendant is valid unless the court which renders it has first obtained jurisdiction over the person of such defendant. This is elementary and fundamental, and goes to the essence of the judgment. And such jurisdiction must be secured through the actual service of process upon the defendant against whom the judgment is sought or through his voluntary appearance in the action.


Attachments On Unliquidated Demands, John R. Rood Jan 1910

Attachments On Unliquidated Demands, John R. Rood

Articles

If the creditor should not have the aid of attachment to recover on unliquidated demands, why not? It is true that attachment as a security for the satisfaction of the judgment that may be recovered in an action pending or just commenced was unknown to the general common law of England, and existed only in a restricted form as a special custom of London and other places in the form of garnishment till it was introduced into the New England colonies by an early statute of Massachusetts, whence its utility commended it so that it was soon adopted in all …


The Remedies For The Collection Of Judgments Against Debtors Who Are Residents Or Property Holders In Another State, Or Within The British Dominions, Thomas M. Cooley Dec 1882

The Remedies For The Collection Of Judgments Against Debtors Who Are Residents Or Property Holders In Another State, Or Within The British Dominions, Thomas M. Cooley

Articles

Whenever a party who has obtained a judgment in one state or county has occasion to take proceedings for its enforcement in another, he finds-perhaps to his surprise-that his judgment as such has no extra-territorial force, but that in other jurisdictions it is merely evidence of a settled demand, upon which judgment must be obtained in a new suit before there can be process for its enforcement. A creditor cannot, for example, upon a judgment recovered in New York, have an execution in Pennsylvania; for courts issue executions only upon their own judgments; and while it would no doubt be …