Short Circuiting the Justice System: How Defendants Are Misusing Writs of Execution

Abstract

This Comment’s approach can be summarized as follows. Part II discusses the basic structure of the law surrounding execution and choses in action. Specifically, it outlines the nature of choses in action as property, the law of execution, execution on choses in action, and constitutional rights associated with choses in action. Part III describes cases in which a defendant judgment creditor has attempted to execute on choses in action against itself, focusing primarily on Washington and Utah’s approaches, but describing cases from other jurisdictions where appropriate. Part IV begins by establishing the superiority of a balancing test compared to the benefits of a bright-line rule that either allows or prohibits the tactic. It then identifies and analyzes the interests of the judgment debtor, the judgment creditor, and society, with an eye toward illuminating how different courts have analyzed and valued those interests. Then it proposes a four-factor test that will properly balance the interests of all of the parties and ensure that courts may exercise their discretion to achieve a just result. Part V.A returns to the hypothetical scenario described above to illustrate some of the potential negative consequences of Utah’s unrestrained approach and how Washington’s approach, coupled with this Comment’s proposed four-factor test, can empower a court to issue a ruling that justly accommodates the interests of all of the parties involved. Finally, Part V.B briefly discusses potential barriers to implementation of the proposed solution.