Confession of judgment

Confession of judgment is a legal term with two meanings:

Use in contract law

First, in its broader sense, it refers to a type of contract (or a clause with such a provision) in which a party agrees to let the other party enter a judgment against him or her. Such contracts are highly controversial and may be invalidated as a violation of due process by courts, since the obligor is essentially contracting away his right to raise any legitimate defenses.^[1]

Confessions of judgment are permitted in many states. New Jersey^[2] and Pennsylvania^[3] permit them, among others. Some states, including Michigan,^[4] require they be specially labelled or have other procedural requirements. However, according to testimony before an Alaska State Legislature committee, "Confession of Judgment is illegal in Alaska, it's illegal in Pennsylvania in consumer transactions, but not in commercial transactions."^[5] A Law Review article distinguishes three groups of state laws, one group comprising seventeen states that make void any agreement to confess judgment entered into before commencement of a suit.^[6]

A typical confession of judgment is: "The undersigned irrevocably authorizes any attorney to appear in any court of competent jurisdiction and confess a judgment without process in favor of the creditor for such amount as may then appear unpaid hereon, and to consent to immediate execution upon such judgment."

Such clauses should be distinguished from liquidated damages clauses, which do not result in binding judgments against the obligor.

Confessions of judgment may also be called "cognovit notes."^[7]

Use by the U.S. Solicitor General

Second, it refers to a practice of the United States Solicitor General in his or her role representing the federal government before the Supreme Court of the United States. By "confessing judgment," the Solicitor General declares that the federal government's position in a case has been wrong all along. As a result, the case is dropped, even when it had been supported by a lower appellate court.

Thus a lower court's decision in a case to which the United States government is a party can be reversed, effectively, in two different ways: first by a reversal by the Supreme Court itself, or second by a "confession of judgment" by the Solicitor General who refuses to prosecute a cause that he or she considers to be unjust.

It is thought to be in defense of this practice that former Solicitor General Frederick W. Lehmann famously stated: "The United States wins its point whenever justice is done its citizens in the courts"; the quote is inscribed inside the rotunda of the United States Attorney General's office.

References