Emory Law Journal

Volume 63Issue 5

Jurisdictional Discrimination and Full Faith and Credit

Ann Woolhandler, Michael G. Collins | 63 Emory L.J. 1023 (2014)

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 the principles that states should maximize one another's policies, and cannot discriminate against sister-state laws. Some scholars, moreover, have argued for extensions of Hughes’s nondiscrimination norm to choice of law, to public policy exceptions to applying sister-state law, and to Congress’s stripping federal courts of jurisdiction. This Article argues that Hughes was wrong. The decision is justified neither by history nor precedent under the Clause, nor by a policy maximization rationale. And its nondiscrimination norm fits poorly with states’ general ability, in the choice-of-law area, to prefer their own law over sister-state law in cases that they choose to entertain. This Article argues that 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 that other scholars have made for extension of Hughes’s rule of nondiscrimination against the law of other sovereigns in the choice of law, public policy, and jurisdiction-stripping settings should therefore draw little support from the doubtful result in Hughes.

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Human Rights After Kiobel: Choice of Law and the Rise of Transnational Tort Litigation

Roger P. Alford | 63 Emory L.J. 1089 (2014)

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the presumption against extraterritoriality applied to the Alien Tort Statute. As such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

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