Article IV, Section 1:

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.

Congress first invoked the Clause in 1790 to pass legislation establishing methods for authenticating other states’ acts, records, and proceedings.1 The 1790 Act provided that if a litigant duly authenticated a judicial record or proceeding, then “every court within the United States” would have to grant that record or proceeding the same “faith and credit” as it would “have by law or usage in the courts of the state from whence the said records” were taken.2 By applying this command to “every court within the United States,” Congress required federal courts to give state judgments full faith and credit, even though the Full Faith and Credit Clause only applies to states.3 The 1790 Act, however, only purported to grant “faith and credit” to “records and judicial proceedings;” it did not list legislative acts among the legal documents entitled to full faith and credit.4

Congress amended the 1790 Act in 1804.5 The 1804 Act added provisions governing the authentication and effect of “records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court.” 6 Additionally, whereas the 1790 Act only applied to state acts, records, and proceedings, the 1804 Act expanded the statute to also apply to U.S. territories’ acts, records, and proceedings.7 However, like the 1790 Act, the 1804 Act did not explicitly require states to give faith and credit to other states’ legislative acts.8

The full faith and credit statute remained essentially unchanged until 1948, when Congress enacted the current Full Faith and Credit Act.9 Like its predecessors, the Full Faith and Credit Act prescribes methods by which one may authenticate an act, record, or proceeding of a state, territory, or possession.10 But unlike its predecessors, the Full Faith and Credit Act requires state and territorial courts to give “full faith and credit” not only to other jurisdictions’ judicial records and proceedings, but also to legislative acts.11 The Act’s legislative history suggests that Congress did not intend that change to alter the Supreme Court’s prevailing rule that states generally may apply their own laws in their own courts.12 Read literally, however, the Act’s text suggests that courts must give other states’ laws conclusive effect, which would modify that rule substantially.13 The Supreme Court has not adopted that literal interpretation of the Act, however.14

Congress has not amended the Full Faith and Credit Act since 1948.15 Thus, under current law, “all courts” in the United States—including federal courts—must “treat a state court judgment with the same respect that it would receive in the courts of the rendering state.” 16 Thus, the Act ordinarily precludes parties from relitigating issues that other courts have adjudicated.17

Footnotes

1

See Act of May 26, 1790, ch. 11, 1 Stat. 122 ( “[T]he acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto . . .” ); id. ( “[T]he records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form.” ). See also San Remo Hotel, L.P. v. City & Cnty. of S.F., 545 U.S. 323, 336 (2005) ( “In 1790, Congress responded to the Constitution’s invitation by enacting the first version of the full faith and credit statute.” ).

2

Act of May 26, 1790, ch. 11, 1 Stat. 122.

3

Compare id. (emphasis added), with U.S. Const. art. IV, § 1 (providing that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State” ) (emphasis added). See also Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) ( “The Full Faith and Credit Clause is of course not binding on federal courts . . .” ); Kremer v. Chem. Constr. Corp., 456 U.S. 461, 462–63 (1982) (explaining that the 1790 Act “directed that all United States courts afford the same full faith and credit to state court judgments that would apply in the State’s own courts” ).

4

See Act of May 26, 1790, ch. 11, 1 Stat. 122 (emphasis added).

5

See Act of Mar. 27, 1804, ch. 56, 2 Stat. 298.

6

See id.

7

Compare Act of May 26, 1790, ch. 11, 1 Stat. 122 ( “[T]he acts of the legislatures of the several states shall be authenticated . . .” ) (emphasis added), and id. ( “[T]he records and judicial proceedings of the courts of any state, shall be proved or admitted . . .” ) (emphasis added), with Act of Mar. 27, 1804, ch. 56, § 2, 2 Stat. 299 ( “[A]ll the provisions of this act, and the act to which this is a supplement, shall apply as well to the public acts, records, office books, judicial proceedings, courts and offices of the respective territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several states.” ) (emphasis added). See also Atchison, Topeka, & Santa Fe Ry. v. Sowers, 213 U.S. 55, 64 (1909) (explaining that while the 1790 Act “did not include the territories,” the 1804 Act “extend[ed] the provisions of the former statute to the public acts, records, judicial proceedings, etc., of the territories” ).

8

See Act of Mar. 27, 1804, ch. 56, 2 Stat. 298. See also David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J. 1584, 1633 (2009) (stating that the 1804 Act contained “no mention of any effect that ‘public acts’ must be given” ).

9

Act of June 25, 1948, ch. 646, § 1738, 62 Stat. 947 (codified at 28 U.S.C. § 1738). See also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996) (referring to the 1948 Act as the “Full Faith and Credit Act” ). But see Kurt H. Nadelmann, Full Faith and Credit to Judgments and Public Acts, 56 Mich. L. Rev. 33, 81 (1957) (noting that Congress made minor, non-substantive changes to the statute in 1875 and 1926).

10

See 28 U.S.C. § 1738 ( “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.” ); id. ( “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.” ).

11

See id. ( “Such Acts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . .” ) (emphasis added). See also Ralph U. Whitten, Full Faith and Credit for Dummies, 38 Creighton L. Rev. 465, 471 (2005) ( “In the 1948 revision of the Judicial Code, the wording of the first implementing statute was amended to include state statutes . . .” ).

12

See H.R. Rep. No. 80-308, at A150 (1947) (stating that the revisers changed the statutory language merely to “follow[ ] the language of Article IV, Section 1 of the Constitution” ). See also ArtIV.S1.4.2 Modern Doctrine on State Law on Full Faith and Credit Clause (analyzing how the modern Court treats out-of-state public acts).

13

See Willis L.M. Reese, Full Faith and Credit to Statutes: The Defense of Public Policy, 19 U. Chi. L. Rev. 339, 343 (1952) ( “As part of the 1948 revision to the Judicial Code, the implementing statute was amended so as to provide that both statutes and judgments alike should be accorded the ‘same full faith and credit’ throughout the country ‘as they have . . . in the courts of such State . . . from which they are taken.’ What, if anything, was intended to be accomplished by this amendment is by no means clear, since, so far as it appears, it was enacted by Congress without discussion and the Revisers’ Notes state simply that it ‘follows the language’ of the full faith and credit clause itself. Taken literally, however, the amendment would seem to constitute a clear mandate that the Supreme Court should henceforth interject itself more forcibly into the field of choice of law.” ); Ralph U. Whitten, The Constitutional Limitations on State Choice of Law: Full Faith and Credit, 12 Mem. St. U. L. Rev. 1, 60–61 (1981) (surmising that the drafters of the 1948 amendment may not have appreciated or intended the consequences of affording full faith and credit to other states’ legislative acts).

14

See, e.g., Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494 (2003) (reaffirming “that the Full Faith and Credit Clause does not compel ‘a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate’” ) (quoting Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988)). See generally ArtIV.S1.4.2 Modern Doctrine on State Law on Full Faith and Credit Clause. See also David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J. 1584, 1620 (2009)(opining that the Supreme Court “has declined to take the 1948 Code’s nominal prescription to replicate the effect of sister-state legislative acts seriously” ).

15

Compare Act of June 25, 1948, ch. 646, § 1738, 62 Stat. 947, with 28 U.S.C. § 1738.

16

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996). See also Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 (1982) ( “Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” ); Allen v. McCurry, 449 U.S. 90, 96 (1980) (same).

17

See San Remo Hotel, L.P. v. City & Cnty. of S.F., 545 U.S. 323, 336 (2005) (explaining that the Full Faith and Credit Act implements “[t]he general rule . . . that parties should not be permitted to relitigate issues that have been resolved by courts of competent jurisdiction” ).