Full Faith and Credit (Update)

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Until recently, four propositions regarding the full faith and credit clause were beyond doubt. First, a judgment consistent with due process rendered by any state or federal court was entitled to recognition in any other American court; indeed, this rule was so strong it could be said to be an "Iron Law." Second, the full faith and credit clause did not require state courts to recognize the judgments of foreign courts, leaving that issue a matter of state law. Third, statutes of other states were not entitled to full faith and credit despite the plain and contrary language of both the constitutional provision itself and the general federal implementing statute. Finally, state courts did not have to enforce sister-state judgments subject to modification, such as alimony and child custody and support judgments. Although each of the propositions remains true, there has been some movement in each area.

First, the Iron Law of full faith and credit remains secure. The Supreme Court has indicated, however, that it will not look fondly upon attempts to bind strangers (nonparties) to the first litigation.

Second, many a recent state decision has refused to recognize a foreign judgment even though rendered by an impeccably fair tribunal, such as a British court, when the judgment contradicts basic American notions of public policy. Most notable have been cases seeking to enforce large awards in defamation actions entered without the significant substantive and procedural safeguards American courts provide defendants in such cases. The United States has engaged in lengthy discussions with many other countries concerning an international convention on mutual recognition of judgments. Such a convention would cause dramatic changes. At the least, enforcement of foreign judgments will be a matter for federal, not state, law. Further, American courts might be called upon to enforce judgments they find repugnant, and, conversely, deny recognition to judgments they find congenial.

Third, a few prominent scholars have suggested that the full faith and credit clause requires recognition of the statutory law of other states. Although the Supreme Court seems unlikely to adopt this interpretation, the topic was much discussed when Congress passed the Defense of Marriage Act (DOMA). This law expressly permitted a state to disregard any state rule authorizing same-sex marriage. Although DOMA was redundant under existing law, which also permits nonrecognition by one state of the statutes of other states, it gave ammunition to both camps in the larger debate. Nevertheless, the practical difficulties of working out which of two or more competing statutes is entitled to full faith and credit—a difficulty confirmed by the Court's fruitless attempts to do so during the first four decades of this century—suggest that statutory law will long remain immune from the mandate of recognition under the full faith and credit clause.

Finally, Congress has decided to use its legislative powers to implement the full faith and credit clause to help enforce orders in child custody and support cases. This bundle of legislation is remarkable for several reasons. It represents the first specific legislation implementing the full faith and credit clause in our history. Second, it runs counter to the principle that the federal government should have nothing to do with family law. Finally, the legislation overcame the strong tradition that the full faith and credit clause did not require enforcement of modifiable orders.

The success of the family law legislation, as well as the proposed covention on recognition of foreign judgments, may lead to further congressional efforts, by full faith and credit legislation, to address problems caused by our federal system of government.

William L. Reynolds

William M. Richman


Laycock, Douglas 1992 Equal Citizens of Equal and Teritorial States: The Constitutional Foundations of Choice of Law. Columbia Law Review 92:249–337.

Reynolds, William 1994 The Iron Law of Full Faith and Credit. Maryland Law Review 53:412–449.