At What Point Is a Right Settled: New Grounds and Preclusion

Abstract

This volume asks whether a repayment made after the judgment can prevent enforcement of the settled right. Reasserting matters that predate the reference point differs from raising grounds of extinguishment that arose afterward. Confusing the time of occurrence with the time of discovery collapses the boundary between a new defense and repeated litigation. The path to relief opens where a ground of objection, such as extinguishment of the claim, arose after the statutory reference point of the judgment and that ground was asserted together with the others, and closes where the ground of objection itself existed before the reference point and only its evidence was discovered later, so that the requirement of a newly arising ground is not satisfied. The six sections address, in turn, the object of objection after finality, the reference point established by law, new evidence and new grounds, why grounds must be raised together, objection to the enforcement of a claim and the scope of finality, and conclusions that change with time. The strongest counterargument is as follows. If even circumstances unknown at the time are excluded, the stability of finality overwhelms the truth. Case chronologies, management of parallel proceedings, and new evidence in criminal retrial are not addressed in this volume.