Full Faith and Credit to Judgments: Now and Then—and Now

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If anything is clear about the full faith and credit owed to the judgments of state courts, it is that by statute, other courts in the United States must give the same full faith and credit to those judgments as that given by the law of the state whose court granted the judgment.¹ And if the statute alone were not clear enough, the United States Supreme Court has left no doubt on the matter.² But the Supreme Court has also left no doubt that uniform federal law, not state law, sometimes determines the measure of full faith and credit to be given the judgments of state courts.³ The Supreme Court has not explained how these two sets of rules coexist. That is the burden of this essay.

The United States Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”⁴ What full faith and credit this provision requires by itself has been the subject of sharp dispute. Beyond dispute, however, has been the authority of Congress to enact 28 U.S.C. § 1738 and its predecessors and thereby specify the degree of full faith and credit to be accorded certain pronouncements of state governments. The first Congress enacted such a statute. Today, the statute provides:

The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.⁷

All along, however, the full faith and credit statute has established the state law of the court that conducted judicial proceedings as the standard for the force those proceedings have elsewhere in the union⁸

In recent years, the Supreme Court has embraced this rule with rigor. Not long ago, the Court was content if a judgment was treated by the court of one jurisdiction—the recognizing court—with “at least” the faith and credit the judgment would meet under the law of the court that had entered the judgment—the rendering court.⁹ That approach would allow the recognizing court to lend a judgment more sway than that judgment would have where it was rendered. This approach is no longer approved. Instead, the recognizing court must give to judgments precisely the same faith and credit as would the rendering court.¹⁰ In one sense, to give a foreign¹¹ judgment greater credit would not disrespect a sister state. After all, to do so allows the judgment more force than the rendering state allows it. But in another sense—the sense that must be behind § 1738—to do so would disrespect a sister state by departing from the law that the sister state has established to define the meaning of its judgments. For example, if the law of the state of the rendering court requires mutuality for collateral estoppel to arise from its judgments, no entity not a party or in privity with a party to the proceedings that yielded a judgment can use that judgment against the party whose loss occasioned that judgment. Consequently, the recognizing state, however it treats its judgments, also must require mutuality in its treatment of that judgment.¹² A state is to give no less credit than a sister state gives to her own judgments but also no more.

Likewise, the Supreme Court has read the command of § 1738 as inexorable. If state preclusion law works a merger even of federal claims, a state judgment precludes the bringing of those claims in federal court afterward. And this, even if those federal claims embrace constitutional rights, and those rights give rise to causes of action under a federal civil rights statute expressly designed to provide relief against state governments, including state courts.¹⁴ The Anti-Injunction Act¹⁵ prohibits federal courts from enjoining state court proceedings and yet grants an exception to permit a federal court “to protect or effectuate its judgments.”¹⁶ Under some circumstances, then, a federal court may enjoin state court proceedings that trounce upon a federal judgment. But this exception is to be read in tandem with § 1738. Once the state court has rendered judgment, the federal court is bound to give it the same full faith and credit as the rendering state court.¹⁷ The rule of full faith and credit overcomes a rule that explicitly enables federal courts to enjoin state courts that themselves may be failing to give federal judgments full faith and credit. Perhaps most remarkable, the Supreme Court has required full faith and credit to be given in federal court to a state court judgment that disposes of claims within the exclusive jurisdiction of the federal courts.¹⁸ The Supreme Court has taken the command of § 1738 to heart even when other federal laws may have invited a less generous interpretation of the breadth of its mandate for full faith and credit to state court judgments.

Both from its adherence to the text of § 1738—“same” means same—and from its commitment to apply it even when in tension with other federal law, the Supreme Court has emphasized that state law governs the effect of state judgments. Especially with respect to preclusive effects, well-established federal law requires that state court judgments have the same effect in courts throughout the United States as they have in the courts that rendered them. How odd, then, that another line of equally well-established cases says otherwise.

Of course, the Constitution and § 1738 are federal law. The rule that state law governs the effect of state judgments is itself federal law. But in addition to this federal law that imposes state law, federal law on its own may govern the effect of state court judgments when a party seeks to use that judgment in the court of another jurisdiction.

First, the Constitution limits the reach of state court judgments.¹⁹ For example, the Due Process Clause prevents a court from considering a person’s claim foreclosed by a judgment if the person was neither a party to that judgment nor in privity with such a party.²⁰ To foreclose such a claim in these circumstances is to take property without due process of law because the claimant owner had no opportunity to dispute the taking. Similarly, the Constitution prevents courts from enforcing judgments if to do so extends the effect of that judgment beyond the limits of the rendering court’s authority.²¹ In these matters, the usual rule that state law prescribes the credit owed to judgments of that state is qualified by limits supplied by the Constitution. To that extent, a federal rule governs the reach of full faith and credit.

Second, a federal statute other than § 1738 may govern the reach of full faith and credit.²² One case construing such a statute is of special interest for our purposes because it not only regulates the validity of state judgments but also regulates the preclusive consequences of state judgments in a way that derogates from the state preclusion law that, as we have seen,²³ § 1738 usually makes binding as a matter of full faith and credit. The case is Kalb v. Feuerstein.²⁴ Kalb involved farmers who sought federal bankruptcy protection after they had suffered state court judgments of foreclosure but before the state court had confirmed the sheriff's sale of their property and ordered them dispossessed.²⁵ The Supreme Court held that the applicable bankruptcy act worked an automatic stay on the state court proceedings and rendered the confirmations and dispossessions nullities unsupported by jurisdiction.²⁶ Federal statutes, like the Constitution, may control the jurisdiction of state courts. For our purposes, however, more important was the Court’s holding on whether these nullities were subject to collateral attack, the only attack possibly available to the farmers in the instant proceedings.²⁷ These nullities were indeed subject to collateral attack.²⁸ The act not only overcame the state law on the jurisdiction of its courts but also overcame the state law on the preclusive effect of the judgments of its courts. These judgments were not to be accorded the full faith and credit determined by the state law of the rendering court. The rule of § 1738 was set aside by a supervening, more specific federal statute.²⁹ This arrangement is not in itself remarkable. But it would be remarkable were the Court to set aside the rule of § 1738 without the benefit of another statute or the Constitution to direct it to do so.

That, however, is what the Court appears to have done on more than one occasion.³⁰ State law governs whether the judgments of that state are subject to collateral attack, including attack by parties who participated in the proceedings leading to the attacked judgment.³¹ As we have seen,³² § 1738 imposes this rule regarding the preclusive effect of judgments upon all other courts within the United States that happen to have before them the question of the preclusive effect of a judgment from another state. Nevertheless, the Supreme Court seems to have ignored this rule in several cases.³³ In one such case, Becher v. Contoure Laboratories Inc., Justice Holmes wrote for the Court.³⁴ A federal court had decided a patent case. In doing so, it had to consider the effect of an earlier New York state court judgment. Justice Holmes considered the preclusive effect that the federal court was bound to recognize from the state judgment. Instead of adverting to New York law to guide his consideration, the Justice seems to have thought the matter something for the Court to discern by its own lights as if it were a question of federal law. The Court may have viewed the question before it as one that yielded to general principles of law—principles universally accepted throughout the nation. Even so, § 1738 should have led the Court to New York authority on that view as on the underlying question itself. From all that appears in Becher, however, the preclusive effect of a judgment of a New York state court, § 1738 notwithstanding, was a question on which New York law was to have no say.

About ten years later, the Supreme Court repeated its disregard of § 1738 when considering what preclusive effect a state court judgment has in federal court. In Davis v. Davis,³⁵ the problem in question is particularly important to this article—issue preclusion regarding the presence of jurisdiction in the state court that had rendered the earlier judgment. The Court cited as controlling a case it had decided some seven years before, Baldwin v. Iowa State Traveling Men’s Association.³⁶ Baldwin, however, had decided the question whether an earlier federal court judgment precluded reconsideration of the jurisdiction of the rendering court in the later proceeding before a second federal court.³⁷ Ignoring § 1738 and its command regarding the effect of judgments of state courts, the Davis Court applied a rule of its own creation, a federal rule.

The next term, the Supreme Court did likewise in Treinies v. Sunshine Mining Co.,³⁸ but with a twist that enabled the Court to indulge this lapse twice in the same case. There, yet again, the Court had before it the question of the preclusive effect in federal court of a state court judgment. That state court judgment came from Idaho. But that Idaho state court judgment itself embraced a ruling on the preclusive effect of a yet earlier judgment from a court of the state of Washington.³⁹ Although the United States Supreme Court was careful to observe that the Idaho court thought the jurisdiction of the Washington court was a matter to be decided under Washington law,⁴⁰ the Court wrote as if Washington law were irrelevant to the preclusive effect to be given to the Washington court’s judgment regarding its own jurisdiction.⁴¹ And as to the Idaho court’s judgment, again the court did not consider Idaho law on the preclusive effect of that judgment.⁴² The case before it rested upon the preclusive effect of two state-court judgments, but the Court did not bother to consult the law of the rendering court for either judgment as § 1738 would seem to require.

As late as 1979, the Supreme Court continued to determine the preclusive effect in federal court of a state court judgment without reference to § 1738 or to the law of the state of the rendering court. In Montana v. United States,⁴³ the Court treated the matter as one of federal law, citing its own cases but not any from Montana, the state of the court that had rendered the judgment.⁴⁴ So much for the force of § 1738 that the Court was to emphasize with such vigor beginning in the next decade.⁴⁵

And so, the question arises: how much of this precedent—precedent that appears to give § 1738 short shrift—survives the precedent of later Courts that hold fast to the command of § 1738 that the law of the court that rendered the judgment governs the preclusive effect of that judgment? Three other cases from before this § 1738 resurgence point to an answer to this question. The first of these is Thompson v. Whitman, decided in 1873.⁴⁶ Thompson was an action in federal court in New York against a New Jersey sheriff for improper seizure of a vessel, though that seizure had been condoned by a judgment of a New Jersey court. The sheriff raised the New Jersey judgment to preclude his liability. The plaintiff asserted that the New Jersey court had lacked jurisdiction. The Supreme Court adverted to its own cases on the question whether the New Jersey judgment itself precluded reexamination of the jurisdiction of the New Jersey court.⁴⁷ But when the Thompson Court used federal law to guide it on the preclusive effect of the state court judgment, it was apparently not to displace the authority of state law that § 1738 obliges other courts to follow. Instead, the Thompson Court seemed to use federal law to guide it on the reach of § 1738.⁴⁸ That surely is a question for federal law to resolve. Before § 1738 directs the application of state law, §1738 must be found applicable itself. Likewise, federal law should govern how that question is answered. State law of preclusion would seem to have no bearing on whether § 1738 calls state law into play on this question.

Without providing the context it suggested in Thompson, the Supreme Court seems to have followed the basic approach of Thompson seventy years later in Sherrer v. Sherrer.⁴⁹ The Court consulted both the law of the rendering state court and the general law of preclusion when determining the effect a state court judgment had in the courts of a sister state, specifically regarding the finding in the judgment that the rendering court had jurisdiction.⁵⁰ If the court was using federal law—having arrived at its own determination guided by general principles of preclusion—to assess the applicability of § 1738 and using the law of the state of the rendering court in applying § 1738, Sherrer follows Thompson.⁵¹

The third case in this series—the last where the Supreme Court adverted to both the law of the state of the rendering court and the general (federal) law of preclusion to determine the effect of a judgment in the court of a sister state—is the chestnut Durfee v. Duke.⁵² A Nebraska state trial court and the affirming state supreme court had adjudged certain land to belong to some Nebraskans. For these courts to have made that judgment properly, they needed jurisdiction over the matter, and this they had only if the land was in Nebraska. The state courts, upon contest of this question, explicitly decided that they had jurisdiction.⁵³

After suffering this defeat, the Missourian opponent sued in state court in Missouri, bringing a repeat of the case she had lost in Nebraska.⁵⁴ The Nebraskans removed the case to federal court on the grounds of diversity of citizenship.⁵⁵ While the district court held that the Nebraska courts’ determination that they had jurisdiction was binding on the question, the court of appeals disagreed and held the matter could be retried in federal court in Missouri.⁵⁶ The Supreme Court reversed:

[W]e hold in this case that the federal court in Missouri had the power and, upon proper averments, the duty to inquire into the jurisdiction of the Nebraska courts to render the decree quieting title to the land in the petitioners. We further hold that when that inquiry disclosed, as it did, that the jurisdictional issues had been fully and fairly litigated by the parties and finally determined in the Nebraska courts, the federal court in Missouri was correct in ruling that further inquiry was precluded. Accordingly the judgment of the Court of Appeals is reversed, and that of the District Court is affirmed.⁵⁷

What concerns us is how the Court reached these conclusions and whether it used Nebraska law or some other law in support.

The Court noted, “[i]t is not questioned that the Nebraska courts would give full res judicata effect to the Nebraska judgment quieting title in the petitioners,” citing Nebraska cases and quoting a summary of the law from the Nebraska Supreme Court in a footnote.⁵⁸ Here, the Court seems to adhere to the direction of § 1738. But the next sentence the Court takes as an invitation to decide the preclusive effect of the Nebraska judgment under the law marked by its own precedents,⁵⁹ and the Court responds:

[W]hile it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court's jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.⁶⁰

And so, the court rehearses the teaching of its own precedent, including cases in which it had decided the preclusive effect of the judgments of federal courts.⁶¹ As in Sherrer,⁶² the Durfee Court does not explain the respective roles it assigned Nebraska law and federal law in determining the preclusion properly worked by the Nebraska state courts in the Missouri federal courts. Nevertheless, its analysis does harmonize with that of Thompson,⁶³ a case the Court does not neglect to cite for the proposition that a court may entertain the question of the jurisdiction of another court that had rendered a judgment when it passes upon the preclusive effect of that previous judgment.⁶⁴ The Durfee Court considered its precedents on the preclusive effect of the Nebraska judgment only after it had answered that Nebraska courts themselves would give the judgment preclusive effect on the question of jurisdiction. It considered its own precedents only in answer to the respondent’s argument that the usual rules of preclusion do not apply if the rendering court in fact lacked jurisdiction because the land at issue was outside the state in which the court sat. This argument raises what must be a federal question, and this question is best seen as a gloss on § 1738. The Durfee Court held, in effect, that no federal law fleshing out the demand of § 1738 militates against the rule that Nebraska law governs the preclusive effect of the Nebraska judgment. Read this way, Durfee helps establish what remains of the Court’s federal preclusion jurisprudence after its own later insistence that § 1738 makes state law govern the preclusion worked by judgments of state courts.

If so inclined, one could find in the jurisprudence of the United States Supreme Court concerning the preclusive effect of state court judgments a hopeless muddle.⁶⁵ Out of one side of its mouth, the Court says state law governs, out of the other, federal law. Although some of this jurisprudence appears muddled, a coherent thread can be picked out. That thread comes with the realization that, in § 1738, we have a statute with both state and federal pivots. To be sure, § 1738 commands courts to apply state law. But the command of § 1738 can lie only within the scope of § 1738, and the scope of § 1738 is a question of federal, not state law.

What arises from § 1738, then, is a two-track system for assessing the preclusive effect of state court judgments in the courts of other jurisdictions. Furthermore, this two-track system embraces more federal law than the text of § 1738 alone would indicate.

One track is the state-law track. If § 1738 governs, it makes state law the measure of the preclusive effect of state-court judgments. If state law allows collateral attack, for example, a collateral attack on the judgment of its courts is allowed to that extent in the courts of other jurisdictions.⁶⁶ Of course, federal law may come into play to check apparent state law if that law breaches applicable federal law. If state law allows an attack for lack of jurisdiction, federal law may provide a rule that reduces state court jurisdiction from what purported state law provides.⁶⁷ But in any case, valid state law marks the reach of state-court judgments under § 1738.

A separate inquiry determines what judgments really do lie within the ambit of § 1738. Here, Thompson,⁶⁸ Sherrer,⁶⁹ and Durfee⁷⁰ help. The language of § 1738 applies its strictures to “judicial proceedings.”⁷¹ For judgments to lie within its ambit, they must result from a “judicial proceeding.”⁷² Perhaps the best way to understand the federal track, the use of the federal law of preclusion regarding state court judgments, is to see this track as testing whether the state-court judgment results from a “judicial proceeding” for purposes of § 1738. Federal law would govern this question (though with appropriate reference to state law on, say, the jurisdiction of its courts), and federal law would govern the extent to which the state court proceeding itself foreclosed later examination of this issue. If so, federal law, as well as state law, would be involved in determining to what extent—and how—a state court judgment is subject to collateral attack for lack of jurisdiction. Such an approach makes sense of much Supreme Court precedent and flows well from the language and function of § 1738.

A 2016 case from the Court seems to endorse this federal-track approach. In V.L. v. E.L.,⁷³ the Court was faced with a decision of the Alabama Supreme Court that a judgment of a Georgia state court was not entitled to full faith and credit in Alabama because the Georgia court lacked jurisdiction to enter the judgment.⁷⁴ The Supreme Court of the United States reversed. Its opinion first distilled from its own federal jurisprudence the principle that the Full Faith and Credit Clause “requires each State to recognize and give effect to valid judgments rendered by the courts of its sister States.”⁷⁵ Thus, reach of the Clause extends only to valid judgments. This proposition is one of federal law. Quoting its own precedents, the Court observed that “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land”⁷⁶ and “[a] state is not required, however, to afford full faith and credit to a judgment rendered by a court that ‘did not have jurisdiction over the subject matter or the relevant parties.’”⁷⁷ Having noted these principles of the federal law of full faith and credit, the Court declared, “Those principles resolve this case.”⁷⁸ Only then did the Court advert to Georgia law on the jurisdiction of the rendering Georgia court, holding that no Georgia law deprived that court of jurisdiction.⁷⁹ Therefore, the courts of Alabama owed full faith and credit to the Georgia judgment.

The structure of the Court’s opinion makes clear that the federal-track analysis of the full faith and credit owed to judgments on the question before it in V.L. is two-step. First comes the applicability and reach of the federal rule of full faith and credit. As a matter of federal law, the rule concerns only valid judgments. State law on the effect of its judgments, for example on their preclusive effect, is irrelevant at this stage. Only at the second stage within the “federal” track does state law enter the picture. And even at this stage, it is not yet state law on the effect of the judgment, but only on its validity. Nowhere does the rule “‘same’ means same” play a role in this federal-track analysis. That rule plays instead a role in determining by the state track what the rule of full faith and credit requires if the rule applies. But the question in V.L. was only whether full faith and credit was owed at all. The federal track—comprising both federal law and state law components—determines, as in V.L., whether the rule of full faith and credit applies.

If a federal-track analysis on the applicability of the rule of full faith and credit is separate from a state-track analysis on what the rule, if applicable, requires, the recent emphasis of the Supreme Court on the state law of preclusion regarding state-court judgments, on the rule of “same” means same,⁸⁰ leaves the federal-track precedent intact. Whatever the command of § 1738, its command reaches only matters within its embrace. This truism requires both a federal track and a state track for assessing the preclusive effect of state-court judgments in the courts of other jurisdictions.

The rule of full faith and credit to be given judgments presents a mélange of federal and state law. In a sense, each plays a double role. Federal law provides both the rule and, necessarily, the scope of the rule. State law provides both the measure applied by the federal rule and, necessarily, a measure used by federal law to determine its scope. Consequently, state preclusion law will govern the reach of judgments that are given (under federal law) full faith and credit. In contrast, federal preclusion law will govern examination of the rendering court's jurisdiction (under state and federal law) in testing whether full faith and credit is to be given to the judgment at all. This mélange is no muddle if these two double roles are kept in mind.

^*Senior Lecturer, Regent University School of Law; B.A., Yale University; J.D., University of Virginia.

¹28 U.S.C. § 1738.

²See, e.g., Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 369 (1996) (“This case presents the question whether a federal court may withhold full faith and credit from a state-court judgment approving a class-action settlement simply because the settlement releases claims within the exclusive jurisdiction of the federal courts. The answer is no.”); Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 375 (1985) (reversing a lower court’s decision not to afford full faith and credit to a state court decision).

³See, e.g., Durfee v. Duke, 375 U.S. 106, 116 (1963) (holding that a federal court sitting in Missouri must give credit to the determination of a Nebraska state court “that the jurisdictional issues had been fully and fairly litigated by the parties and finally determined”).

⁴U.S. Const. art. IV, § 1.

⁵See, e.g., Sun Oil Co. v. Wortman, 486 U.S. 717 (1988); David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L. J. 1584 (2009); Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201 (2009); Jeffrey L. Rensberger, Same-Sex Marriages and the Defense of Marriage Act: A Deviant View of an Experiment in Full Faith and Credit, 32 Creighton L. Rev. 409 (1998); Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 Creighton L. Rev. 255 (1998); Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L. J. 1965 (1997).

⁶Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 Cornell L. Rev. 733, 740 (1986) (“The first Congress implemented and elaborated the full faith and credit clause, requiring that duly authenticated records and judicial proceedings of the courts of any state have ‘such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.’” (quoting Act of May 26, 1790, ch. 11, 1 Stat. 122)).

⁷28 U.S.C. § 1738. This Article will speak of state courts and the laws of the states of those courts, but this parlance should be taken to refer to the courts and laws of United States territories and possessions as well. In extending the demands of full faith and credit to such, the full faith and credit statute exceeds the scope of the full faith and credit clause of the Constitution. The constitutional warrant underlying this aspect of the statute must derive from the authority Congress has to legislate for United States territories and possessions. See Americana of P.R., Inc. v. Kaplus, 240 F. Supp. 854, 856 (D.N.J. 1965), aff'd, 368 F.2d 431 (3d Cir. 1966) (“It is true that Article IV, § 1 of the Constitution speaks only of full faith and credit to be given to state proceedings. But Congress, by virtue of Article IV, § 3 is vested with full power to legislate for the territories. . . . That constitutional authorization certainly includes the power to declare that full faith and credit be given to judgments of territorial courts.”).

⁸Whatever the “force” judicial proceedings are to have elsewhere in the Union, doubtless the procedures for determining how that force is to be applied in another jurisdiction may be set by the law of the latter. See, e.g., Fall v. Easton, 215 U.S. 1 (1909).

⁹See, e.g., Durfee v. Duke, 375 U.S. 106, 109 (1963) (“Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.”).

¹⁰Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). Marrese dealt with the credit to be given in a federal court to a state judgment, but because § 1738 speaks to both state and federal recognizing courts, Marrese surely speaks to both as well.

¹¹In this context, “foreign” denotes pertaining to another jurisdiction within the United States and not to another nation.

¹²Compare Hart v. Am. Airlines, 304 N.Y.S.2d 810 (N.Y. Sup Ct. 1969) with Columbia Casualty Co. v. Playtex FP Inc., 584 A.2d 1214 (Del. 1991). On mutuality and the general taxonomy of res judicata, collateral estoppel, and preclusion see Allen v. McCurry, 449 U.S. 90, 94–95 (1980).

¹³Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75 (1984).

¹⁴Id. On the design of the civil rights statute at issue in Migra see Mitchum v. Foster, 407 U.S. 225 (1972) and Monroe v. Pape, 365 U.S. 167 (1961).

¹⁵28 U.S.C. § 2283.

¹⁶Id.

¹⁷Parsons Steel, Inc. v. First Ala. Bank, 475 U.S. 518 (1986).

¹⁸Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996); Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373 (1985). Marrese, unlike Matsushita, did not involve a state court judgment that explicitly purported to dispose of exclusive federal claims. Instead, it involved the merger under state preclusion law of exclusive federal claims into state claims that the plaintiff had unsuccessfully prosecuted in state court. Upshot: state preclusion law governs the bringing of exclusive federal claims in federal court—claims the state court cannot entertain—if that is the state law consequence of the state court judgment.

¹⁹To these limits may be added those that cabin the validity of the judgment itself. See, e.g., May v. Anderson, 345 U.S. 528 (1953). An invalid judgment typically has no reach. See Kremer v. Chem. Const. Corp., 456 U.S. 461, 482–83 (1982) (“A State may not grant preclusive effect in its own courts to a constitutionally infirm judgment, and other state and federal courts are not required to accord full faith and credit to such a judgment. Section 1738 does not suggest otherwise; other state and federal courts would still be providing a state court judgment with the ‘same’ preclusive effect as the courts of the State from which the judgment emerged. In such a case, there could be no constitutionally recognizable preclusion at all.” (footnotes omitted)). But see Durfee v. Duke, 375 U.S. 106, 116 (holding that a judgment is to be treated as valid although a thorough investigation of its actual validity is barred). The law of preclusion may itself preclude an independent determination of even the constitutional soundness of the precluding judgment. Durfee receives fuller treatment below.

²⁰S. Cent. Bell Telephone Co. v. Alabama, 526 U.S. 160 (1999).

²¹May, 345 U.S. at 528; cf. Baker v. Gen. Motors Corp., 522 U.S. 222, 240–41 (1998) (holding full faith and credit owed to judgments only within the authority of the rendering court, presumably deriving both this rule and the limit it enforces in this particular case from the Constitution).

²²Statutes “next-of-kin” to § 1738 have explicitly altered—or attempted to alter—the general § 1738 rule of full faith and credit. The Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B, detail rules governing the credit to be given judgments regarding child custody and child support respectively. The full faith and credit component of the Defense of Marriage Act, 28 U.S.C. § 1738C, was sapped by Obergefell v. Hodges, 576 U.S. 644 (2015).

²³See supra Part I.

²⁴308 U.S. 433 (1940).

²⁵Id. at 435–36.

²⁶Id. at 438–40.

²⁷Id. at 438–44.

²⁸“Congress, because its power over the subject of bankruptcy is plenary, may by specific bankruptcy legislation create an exception to that principle and render judicial acts taken with respect to the person or property of a debtor whom the bankruptcy law protects nullities and vulnerable collaterally.” Id. at 438–39 (footnote omitted); “considerations as to whether the issue of jurisdiction was actually contested in the County Court, or whether it could have been contested, are not applicable where the plenary power of Congress over bankruptcy has been exercised as in this Act.” Id. at 444 (footnotes omitted).

²⁹A more recent case very similar to Kalb in this respect is Brown v. Felsen, 442 U.S. 127 (1979). There, the Court again held that a provision of federal bankruptcy law had displaced the usual rule of § 1738. Id. at 138–39.

³⁰Suzanna Sherry, Logic Without Experience: The Problem of Federal Appellate Courts, 82 Notre Dame L. Rev. 97, 103 (2006) (“The Supreme Court itself often determined the preclusive effect of a prior state-court judgment by looking to general federal law rather than to the law of the state issuing the judgment, without even mentioning § 1738.” (footnote omitted)); Barbara Ann Atwood, State Court Judgments in Federal Litigation: Mapping the Contours of Full Faith and Credit, 58 Ind. L.J. 59, 71 (1983) (“In many decisions the Court ignored altogether the preclusion doctrines of the rendering state and instead drew from a general federal common law of res judicata.” (footnote omitted)).

³¹See, e.g., Mireles v. Mireles, No. 01-08-00499-CV, 2009 WL 884815 (Tex. Ct. App. Apr. 2, 2009).

³²See supra Part I.

³³The preclusive effect of federal court judgments is not governed by § 1738. Rather, this statute governs the preclusive effect of “judicial proceedings” only “of any State, Territory, or Possession of the United States.” 28 U.S.C. § 1738. The United States Supreme Court itself generally determines as a matter of federal common law the preclusive effect of federal judgments and how it is to be respected in all courts, state and federal. See U.S. v. U.S. Fidelity & Guar. Co., 309 U.S. 506 (1940); Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940); Stoll v. Gottlieb, 305 U.S. 165 (1938); Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522 (1931). See generally Burbank, supra note 6 (discussing the entire range of preclusion from both state and federal judgments).

³⁴279 U.S. 388 (1929).

³⁵305 U.S. 32 (1938).

³⁶Id. at 40 (citing Baldwin, 283 U.S. 522, 525, 526).

³⁷Baldwin, 283 U.S. at 522.

³⁸308 U.S. 66 (1939).

³⁹Id. at 76.

⁴⁰Ironically, however, the Idaho court actually applied Idaho law to find that the Washington court that had entered the earliest judgment lacked jurisdiction. Idaho law applied for failure of proof of Washington law. Id. at 77 n.21.

⁴¹Id.

⁴²Id. at 78.

⁴³440 U.S. 147 (1979).

⁴⁴Id. at 153–64.

⁴⁵See supra Part I.

⁴⁶85 U.S. 457 (1873).

⁴⁷The Court did mention New Jersey cases on the reexamination of jurisdiction for cases decided by the courts of other states, but not on the reexamination of jurisdiction for the judgments of New Jersey courts. Id. at 468–69.

⁴⁸Id. at 464; id. at 469 (“On the whole, we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790 [now § 1738], and notwithstanding the averments contained in the record of the judgment itself.”).

⁴⁹334 U.S. 343 (1948).

⁵⁰Id. at 348–56.

⁵¹The Sherrer Court seems to follow the Thompson approach when it summarizes its own approach as a test that embraces as alternatives both federal and state standards. Id. at 351–52 (“[T]he requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.” (footnote omitted)).

⁵²375 U.S. 106 (1963).

⁵³Id. at 108.

⁵⁴Id.

⁵⁵Id.

⁵⁶Id. at 108–09.

⁵⁷Id. at 116.

⁵⁸Id. at 109; see also id. at n.6.

⁵⁹“It is the respondent's position, however, that whatever effect the Nebraska courts might give to the Nebraska judgment, the federal court in Missouri was free independently to determine whether the Nebraska court in fact had jurisdiction over the subject matter, i.e., whether the land in question was actually in Nebraska.” Id. at 109–10.

⁶⁰Id. at 111.

⁶¹Id. at 111–15 (discussing as governing the case before it Baldwin, U.S. at 522 and Stoll v. Gottlieb, 305 U.S. 165 (1938), among other precedents).

⁶²See supra notes 49–51 and accompanying text. The Durfee Court employed Sherrer in its discussion also. 375 U.S. at 112–15.

⁶³See supra notes 46–48 and accompanying text.

⁶⁴Durfee, 375 U.S. at 110.

⁶⁵See, e.g., Sherry, supra note 30, at 103–05.

⁶⁶Cf. Haring v. Prosise, 462 U.S. 306, 317 (1983) (“We therefore conclude that Virginia law would not bar Prosise from litigating the validity of the search conducted by petitioners. Accordingly, the issue is not foreclosed under 28 U.S.C. § 1738.”).

⁶⁷See supra notes 19, 21, 24–26 and accompanying text.

⁶⁸See supra notes 46–48 and accompanying text.

⁶⁹See supra notes 49–51 and accompanying text.

⁷⁰See supra notes 52–64 and accompanying text.

⁷¹See supra note 7 and accompanying text.

⁷²While the second clause of the statute might be read to extend to “records” of courts and not just to their “judicial proceedings,” the Constitutional text underlying the statute seems to refer to the records of states and to the judicial proceedings of courts. See supra text accompanying note 4. Even if “records” and “judicial proceedings” both do refer, under § 1738, to the business of courts, judgments would seem to fit within the latter term more comfortably than within the former.

⁷³577 U.S. 404 (2016) (per curiam).

⁷⁴Id. at 406–07.

⁷⁵Id. (emphasis added).

⁷⁶Id. at 407 (quoting Baker v. Gen. Motors Corp, 522 U.S. 222, 233 (1998)) (emphasis added).

⁷⁷Id. (quoting Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Assn., 455 U.S. 691, 705 (1982)).

⁷⁸Id.

⁷⁹Id. at 406–10.

⁸⁰See supra Part I.

Craig A. SternJanuary 12, 2024