Don’t Forget The Restatement (Fourth)

In my post on Clay v. Hilton, I gave what I think is the usual or orthodox view: a judgment of state A that is recognized in state B has the preclusive effect that it would have in state A. It doesn’t have more preclusive effect in order to avoid mischief. It doesn’t have less preclusive effect, in order to avoid needless follow-on litigation. In support of this view, I cited the Restatement (Second) of Conflict of Laws, which is showing its age but hasn’t yet been replaced by the new restatement on conflicts, which is a work in progress. But friend of Letters Blogatory Bill Dodge reminded me that the ALI’s current view on this question is not in the Restatement (Second) of Conflicts at all, but rather in the Restatement (Fourth) of the Foreign Relations Law of the United States. Section 487 of the Restatement (Fourth) provides:

A foreign judgment entitled to recognition under § 481 is given the same preclusive effect by a court in the United States as the judgment of a sister State entitled to full faith and credit. A foreign judgment will not be given greater preclusive effect in the United States than the judgment would be accorded in the state of origin

This doesn’t really change the analysis I gave in my post, but it is a good opportunity to remind everyone including me of the still-new Restatement (Fourth). It is a great resource for lawyers and judges. So if you are like me, and your first instinct, when another lawyer asks you a question about the law, is to reach for the appropriate Restatement, remember to add the Restatement (Fourth) to the list of restatements you consult.

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