Michigan Law Review
Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion1 more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. This article examines the problem of interjurisdictional preclusion, and, in particular, the problem of choice of preclusion law. Choice of-preclusion law cannot be appreciated in the abstract, but rather must be considered in light of litigation realities. Thus, the article considers the following series of questions: First, how does preclusion law affect litigation behavior, and what policy implications result from these effects? Second, to what extent does preclusion law actually vary among jurisdictions? Third, what is the legal foundation for interjurisdictional preclusion, and what law ought to govern interjurisdictional preclusive effect? Fourth, how are courts in fact dealing with interjurisdictional preclusion, and what implications does that empirical information carry for choice of preclusion law? Part I of the article considers the effect of preclusion law on the behavior of litigation participants and concludes that preclusion law can affect many of the most significant strategic decisions in litigation. Its impact on litigation behavior, however, is not felt primarily at the forum of the subsequent action (F2), where the parties present their arguments on claim preclusion or issue preclusion. Rather, the impact is felt at the forum of the prior action (F1), where the parties and other participants make decisions based in part on their expectation of the preclusive effect a judgment will have. Thus, preclusion law matters to Fl's policy choices concerning judicial economy, settlement, lawsuit size, litigant zeal, and other litigation-related values. To determine whether and how choice of preclusion law matters, Part II examines the extent to which preclusion law varies from one jurisdiction to another. Preclusion rules vary much more than most lawyers would suspect, and they vary in ways that implicate the strategic incentives discussed in Part I. Given the importance of preclusion-law variations to strategic incentives at the initial forum, the choice of preclusion law must not turn on where the subsequent suit is filed. Rather, as Part III shows, interjurisdictional preclusion requires a "pure F1 referent" and should nearly always be governed by F1's own preclusion law. This applies not only to the state-state and state-federal configurations, which are governed by the full faith and credit statute,15 but also to the federal-state configuration. Part IV moves from the normative to the empirical. What, in fact, do courts do when presented with a potentially preclusive judgment from another United States jurisdiction? Of course, they acknowledge the judgment's binding effect. But whose law do they use to determine the nature and extent of the judgment's effect? The article presents the results of my study of several hundred interjurisdictional preclusion cases, focusing on the federal-state configuration. Most often state courts apply their own preclusion law, rather than the law of the rendering jurisdiction. Generally, this appears to be done reflexively, as decisions rarely offer any analysis of choice of preclusion law.
Howard M. Erichson,
Interjurisdictional Preclusion, 96 Mich. L. Rev. 945
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/213