Book Review: Some Problems of Proof Under the Anglo-American System of Litigation

This excellent little book contains the Carpentier lectures delivered by Professor Morgan at Columbia University in January and April of 1955. It is a real contribution to clarity of thought in the field of judicial proof and to the cause of sensible and practical law reform, some of it already forecast in isolated articles by the same author. Of course no book is flawless, and the greatest flaw I find in Professor Morgan\u27s writings is that they make hard reading. This is not due to any confusion of thought or to any failure to think things through, on Mr. Morgan\u27s part. Quite the contrary. He thinks his material through very thoroughly and quite without confusion, but the result in writing is so compact and concise that it takes the very closest attention to follow and get the most out of it

Last Clear Chance: A Transitional Doctrine

The rule that a plaintiff, though negligent himself, may nevertheless recover from a defendant who had the last clear chance to avoid injuring him, is no more to be accounted for by the legal reasoning generally used to sustain it than is any other rule of law. The iconoclast of yesterday rent the veil of rationalization and exposed economic and political factors and philosophies as the inarticulate major premises underlying legal decision. We may readily concede his thesis. Yet the fact that these premises are inarticulate of itself has some effect in directing the course of a trend, and leaves no little room for rationalization and explanation to give it shape--sometimes to distort it. Here we shall try to study the legal principles and formulae which have been thought to explain the rule in question, and to trace the influence these have had in giving it the various forms it has taken in different jurisdictions. We can then, perhaps, evaluate these influences in the light of the broad purposes which the rule may be useful in serving, and, on the basis of this appraisal, indicate the future changes which the doctrine is likely to undergo

Consent Judgments as Collateral Estoppel

Where the parties settle a dispute and a court enters a judgment upon the parties\u27 consent, that judgment is in many ways like a judgment entered after full contest upon a jury verdict or a court\u27s finding. It may be enforced in the same way as any other judgment. It is no more subject to collateral attack. The original claim may become merged in it or barred by it just as that claim would be in a judgment after contest. There is a serious conflict in the cases, however, on the question whether a consent judgment binds the parties collaterally upon facts which had been in issue in the action which was settled. One line of cases treats the consent judgment as implying a determination of those issues in the same way as would a judgment entered on the general verdict of a jury. Thus a consent judgment for plaintiff in a negligence case was held in Biggio v. Magee to imply a finding of defendant\u27s negligence and the absence of negligence on plaintiff\u27s part. Other courts reject this result, reasoning that a consent judgment implies no determination by the court of any issues in the case. It is the purpose of this Article to contend that the latter rule is right and that a consent judgment should not be given any effect as collateral estoppel except in the rare case where it may fairly be said that the parties intended this effect