The Limits of Civil Retrial: Grounds for Reopening a Final and Conclusive Judgment

Abstract

This volume asks what grounds must exist before a final and conclusive judgment believed to be wrong is reopened. A civil retrial must pass through the statutory grounds and period, and the new-evidence standard of criminal retrial cannot be transposed as is. Cases in which a ground exists but the outcome is nonetheless just must be separated out. The path to relief opens where the statutory ground for retrial, the requirement of a prior final determination, and the period or an exception to it are satisfied and the justness of the outcome of the original judgment can also be reheard, and closes where there is no statutory ground, or the restriction on grounds not asserted on appeal or the period limitation applies with no applicable exception, and only a mere new grievance remains. The six sections address, in turn, the grounds for reopening a final and conclusive judgment, grounds known but left unraised, the prior determination required for allegations of a crime, the period and exclusions from its application, defects in the underlying decision, and the recognition of a ground and the change of outcome. The strongest counterargument is as follows. A gap in relief remains for serious misjudgments falling outside the enumerated grounds. The novelty and clarity requirements of criminal retrial and the management of challenge schedules are not addressed in this volume.