Jurisdictional Discrimination and Full Faith and Credit

Abstract

In Hughes v. Fetter (1951), the Supreme Court ruled that state courts are ordinarily required — as a matter of the Full Faith and Credit Clause — to take jurisdiction of claims arising under sister state law, their own wishes notwithstanding. Hughes remains a foundational case for Conflict of Laws and interstate relations. It is said to embody principles that states should maximize each others’ policies, and cannot discriminate against sister state laws. This article argues that Hughes was wrong. The decision is not justified by history or precedent under the Clause, nor by a policy maximization rationale. And its nondiscrimination norm fits poorly with states’ allowable preferences for enforcement of their own law over sister-state law. Rather, states should be under a much more limited duty, grounded in a litigant’s substantive entitlement to redress, rather than a duty not to discriminate against the law of sister states. Arguments for extension of a rule of nondiscrimination against the law of other sovereigns in the choice of law, public policy, and jurisdiction-stripping settings should therefore not rely on the doubtful result in Hughes.