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News from the US

I am sure the Star newspaper has done some research on UK law before seeking to recover the money it paid Archer in the 80s under the lie-imbued libel judgment, but my brief look at US law revealed a startling difference.

a) After one year has passed, simple perjury will not suffice to reopen a judgment. James, Hazard, & Leubsdorf, Civil Procedure 786 (2001). Perjury or forgery are "intrinsic" fraud which are insufficient for two reasons: the opponent could cross examine, etc, to protect itself, and any judgment based on conflicting testimony could be attacked for perjury. The moving party must show "extrinsic" fraud, for example bribery of the judge or jury, to reopen after one year. A decade-old US judgment based on perjury would stand.

b) As a prerequisite for restitution, a judgment must be "reversed or avoided," that is "set aside in collateral proceedings." Restatement of Restitution and Unjust Enrichment, Section 18 (Tentative Draft No. 1, 2001). Restitution would occur only if the court strikes the judgment down.

Being factually erroneous because of dishonest testimony is not enough to reopen a judgment in the US - after a year, the judgment must be void to be vulnerable, but only lack of subject matter or personal jurisdiction will lead to a void judgment.

These rules are based on elusive distinctions between intrinsic and extrinsic fraud and between erroneous and void judgments. A court might like to subordinate the policies of finality, reliance, and stability to preventing a perjurer's unjust enrichment.

This might occur if the newspaper obtained a UK judgment for restitution, Archer, upon release, moved to the US because of its salubrious laws, the newspaper brought the UK restitution judgment here and asked a US court to recognize it based on "comity," the judgment debtor asked the court to reject it because of its repugnance to local "public policy," and the court rejected the "public policy" defense and recognized the UK restitution judgment. Weirder things have happened.

Once again the English classes and their civil courts have augmented the world's flagging supply of harmless fun.

Hail.

Doug Rendleman
Washington & Lee