The due process and equal protection clauses of the Fourteenth Amendment:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.… [U.S. Const. amend. XIV, §1.]
The full faith and credit clause and statute:
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. [U.S. Const. art. IV, §1.]
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. [28 U.S.C. §1738.]
The privileges and immunities clause:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. [U.S. Const. art. IV, §2.]
The Congress shall have power … To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes.… [U.S. Const. art. I, §8.]
The major constitutional limitations on the choice-of-law process have been the federal due process clause and the full faith and credit clause. The commerce clause places limits on state regulation as well. In addition, both the equal protection and privileges and immunities clauses are of potential relevance to modern choice-of-law theory because they arguably limit a state’s right to discriminate on the basis of where activities occur or where the litigants are domiciled.
It is unclear how these five constitutional provisions fit together. Do the due process and full faith and credit clauses duplicate each other’s choice-of-law functions precisely? Why does the Supreme Court sometimes rely on the commerce clause rather than on due process analysis in assessing the validity of state regulation? What is the connection between the equal protection clause and the privileges and immunities clause? And how can one tell in a particular case which constitutional provision to employ? Finding answers to these questions is further complicated by the fact that the scope and role of these clauses has changed over time.
A. Constitutional Limitations on Choice of Law
There was a point at which traditional principles of the kind found in the First Restatement appeared to be on the way to enshrinement in the Constitution (through Supreme Court interpretation). Thus, in New York Life Insurance Co. v. Dodge, 246 U.S. 357 (1918), the Court struck down application of a Missouri nonforfeiture statute to a life insurance policy bought in Missouri and covering a Missouri domiciliary, holding that the contract and an accompanying loan agreement were not in force until accepted by the company’s home office in New York. Thus, the contract was formed in New York. Missouri, the Court said, was forbidden by the due process clause from denying the company rights that had vested under New York law. The Court backed off in result, though not in rhetoric, a few years later in an almost identical case, Mutual Life Insurance Co. v. Liebing, 259 U.S. 209 (1922), by finding that the loan agreement subject to the nonforfeiture statute was a separate agreement formed in Missouri and thus subject to Missouri law.
Even if the Constitution was not to be read as implementing every detailed traditional rule, parochial choice of law continued to concern the Court. The case that follows is still cited with approval in Supreme Court decisions.
Home Insurance Co. v. Dick
281 U.S. 397 (1930)
Justice BRANDEIS delivered the opinion of the Court.
Dick, a citizen of Texas, brought this action in a court of that State against Compania General Anglo-Mexicana de Seguros S.A., a Mexican corporation, to recover on a policy of fire insurance for the total loss of a tug. Jurisdiction was asserted in rem through garnishment, by ancillary writs issued against The Home Insurance Company and Franklin Fire Insurance Company, which reinsured, by contracts with the Mexican corporation, parts of the risk which it had assumed. The garnishees are New York corporations. Upon them, service was effected by serving their local agents in Texas appointed pursuant to Texas statutes, which require the appointment of local agents by foreign corporations seeking permits to do business within the State.
The controversy here is wholly between Dick and the garnishees. The defendant has never been admitted to do business in Texas; has not done any business there; and has not authorized anyone to receive service of process or enter an appearance for it in this cause.…
[The insurance companies’] defense rests upon the following facts. This suit was not commenced till more than one year after the date of the loss. The policy provided: “It is understood and agreed that no judicial suit or demand shall be entered before any tribunal for the collection of any claim under this policy, unless such suits or demands are filed within one year counted as from the date on which such damage occurs.” This provision was in accord with the Mexican law to which the policy was expressly made subject. It was issued by the Mexican company in Mexico to one Bonner, of Tampico, Mexico, and was there duly assigned to Dick prior to the loss. It covered the vessel only in certain Mexican waters. The premium was paid in Mexico; and the loss was “payable in the City of Mexico in current funds of the United States of Mexico, or their equivalent elsewhere.” At the time the policy was issued, when it was assigned to him, and until after the loss, Dick actually resided in Mexico, although his permanent residence was in Texas. The contracts of reinsurance were effected by correspondence between the Mexican company in Mexico and the New York companies in New York. Nothing thereunder was to be done, or was in fact done, in Texas.
In the trial court, the garnishees contended that since the insurance contract was made and was to be performed in Mexico, and the one year provision was valid by its laws, Dick’s failure to sue within one year after accrual of the alleged cause of action was a complete defense to the suit on the policy; that this failure also relieved the garnishees of any obligation as reinsurers, the same defense being open to them, and that they, consequently, owed no debt to the Mexican company subject to garnishment. To this defense, Dick demurred, on the ground that Article 5545 of the Texas Revised Civil Statutes (1925) provides:
No person, firm, corporation, association or combination of whatsoever kind shall enter into any stipulation, contract, or agreement, by reason whereof the time in which to sue thereon is limited to a shorter period than two years. And no stipulation, contract, or agreement for any such shorter limitation in which to sue shall ever be valid in this State.
The trial court sustained Dick’s contention and entered judgment against the garnishees. On appeal, both in the Court of Civil Appeals and in the Supreme Court of the State, the garnishees asserted that, as construed and applied, the Texas statute violated the due process clause of the Fourteenth Amendment and the contract clause. Both courts treated the policy provision as equivalent to a foreign statute of limitation; held that Article 5545 related to the remedy available in Texas courts; concluded that it was validly applicable to the case at bar; and affirmed the judgment of the trial court. The garnishees appealed to this Court on the ground that the statute, as construed and applied, violated their rights under the Federal Constitution. Dick moved to dismiss the appeal for want of jurisdiction. Then the garnishees filed, also, a petition for a writ of certiorari. Consideration of the jurisdiction of this Court on the appeal, and of the petition for certiorari, was postponed to the hearing of the case on the merits.
First. Dick contends that this Court lacks jurisdiction of the action, because the errors assigned involve only questions of local law and of conflict of laws. The argument is that while a provision requiring notice of loss within a fixed period is substantive because it is a condition precedent to the existence of the cause of action, the provision for liability only in case suit is brought within the year is not substantive because it relates only to the remedy after accrual of the cause of action; that while the validity, interpretation and performance of the substantive provisions of a contract are determined by the law of the place where it is made and is to be performed, matters which relate only to the remedy are unquestionably governed by the lex fori; and that even if the Texas court erred in holding the statute applicable to this contract, the error is one of state law or of the interpretation of the contract, and is not reviewable here.
The contention is unsound. There is no dispute as to the meaning of the provision in the policy. It is that the insurer shall not be liable unless suit is brought within one year of the loss. Whether the provision be interpreted as making the commencement of a suit within the year a condition precedent to the existence of a cause of action, or as making failure to sue within the year a breach of a condition subsequent which extinguishes the cause of action, is not of legal significance here. Nor are we concerned with the question whether the provision is properly described as relating to remedy or to substance. However characterized, it is an express term in the contract of the parties by which the right of the insured and the correlative obligation of the insurer are defined. If effect is given to the clause, Dick cannot recover from the Mexican corporation and the garnishees cannot be compelled to pay. If, on the other hand, the statute is applied to the contract, it admittedly abrogates a contractual right and imposes liability, although the parties have agreed that there should be none.
The statute is not simply one of limitation. It does not merely fix the time in which the aid of the Texas courts may be invoked. Nor does it govern only the remedies available in Texas courts. It deals with the powers and capacities of persons and corporations. It expressly prohibits the making of certain contracts. As construed, it also directs the disregard in Texas of contractual rights and obligations wherever created and assumed; and it commands the enforcement of obligations in excess of those contracted for. Therefore, the objection that, as applied to contracts made and to be performed outside of Texas, the statute violates the Federal Constitution, raises federal questions of substance; and the existence of the federal claim is not disproved by saying that the statute, or the one year provision in the policy, relates to the remedy and not to the substance.
Second. The Texas statute as here construed and applied deprives the garnishees of property without due process of law. A State may, of course, prohibit and declare invalid the making of certain contracts within its borders. Ordinarily, it may prohibit performance within its borders, even of contracts validly made elsewhere, if they are required to be performed within the State and their performance would violate its laws. But, in the case at bar, nothing in any way relating to the policy sued on, or to the contracts of reinsurance, was ever done or required to be done in Texas. All acts relating to the making of the policy were done in Mexico. All in relation to the making of the contracts of reinsurance were done there or in New York. And, likewise, all things in regard to performance were to be done outside of Texas. Neither the Texas laws nor the Texas courts were invoked for any purpose, except by Dick in the bringing of this suit. The fact that Dick’s permanent residence was in Texas is without significance. At all times here material, he was physically present and acting in Mexico. Texas was, therefore, without power to affect the terms of contracts so made. Its attempt to impose a greater obligation than that agreed upon and to seize property in payment of the imposed obligation violates the guaranty against deprivation of property without due process of law.
The cases relied upon, in which it was held that a State may lengthen its statute of limitations, are not in point. In those cases, the parties had not stipulated a time limit for the enforcement of their obligations. It is true that a State may extend the time within which suit may be brought to its own courts, if, in doing so, it violates no agreement of the parties. And, in the absence of a contractual provision, the local statute of limitation may be applied to a right created in another jurisdiction even where the remedy in the latter is barred. In such cases, the rights and obligations of the parties are not varied. When, however, the parties have expressly agreed upon a time limit on their obligation, a statute which invalidates the agreement and directs enforcement of the contract after the time has expired increases their obligation and imposes a burden not contracted for.
It is true also that a State is not bound to provide remedies and procedure to suit the wishes of individual litigants. It may prescribe the kind of remedies to be available in its courts and dictate the practice and procedure to be followed in pursuing those remedies. Contractual provisions relating to these matters, even if valid where made, are often disregarded by the court of the forum, pursuant to statute or otherwise. But the Texas statute deals neither with the kind of remedy available nor with the mode in which it is to be pursued. It purports to create rights and obligations. It may not validly affect contracts which are neither made nor are to be performed in Texas.
Third. Dick urges that Article 5545 of the Texas law is a declaration of its public policy; and that a State may properly refuse to recognize foreign rights which violate its declared policy. Doubtless, a State may prohibit the enjoyment by persons within its borders of rights acquired elsewhere which violate its laws or public policy; and, under some circumstances, it may refuse to aid in the enforcement of such rights. But the Mexican corporation never was in Texas; and neither it nor the garnishees invoked the aid of the Texas courts or the Texas laws. The Mexican corporation was not before the court. The garnishees were brought in by compulsory process. Neither has asked favors. They ask only to be let alone. We need not consider how far the State may go in imposing restrictions on the conduct of its own residents, and of foreign corporations which have received permission to do business within its borders; or how far it may go in refusing to lend the aid of its courts to the enforcement of rights acquired outside its borders. It may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them.
Fourth. Finally, it is urged that the Federal Constitution does not require the States to recognize and protect rights derived from the laws of foreign countries—that as to them, the full faith and credit clause has no application. The claims here asserted are not based upon the full faith and credit clause. They rest upon the Fourteenth Amendment. Its protection extends to aliens. Moreover, the parties in interest here are American companies. The defense asserted is based on the provision of the policy and on their contracts of reinsurance. The courts of the State confused this defense with that based on the Mexican Code. They held that even if the effort of the foreign statute was to extinguish the right, Dick’s removal to Texas prior to the bar of the foreign statute, removed the cause of action from Mexico and subjected it to the Texas statute of limitation. And they applied the same rule to the provision in the policy. Whether or not that is a sufficient answer to the defense based on the foreign law, we may not consider; for, no issue under the full faith and credit clause was raised. But in Texas, as elsewhere, the contract was subject to its own limitations.
Questions and Comments
(1) Virtually all the contacts in this case were with Mexico. How did Dick get jurisdiction in Texas? The constitutionality of the quasi in rem jurisdiction the Court exercised was disposed of many years later in Rush v. Savchuk, 444 U.S. 320 (1980), page 505 infra. Should a state always be allowed to apply its own law if it has enough contacts to assert “normal” long-arm jurisdiction? Compare Phillips Petroleum Co. v. Shutts, page 326 infra.
(2) How persuasive is the Court’s assertion that the statute in question is not merely one of limitation, and therefore not defensible under the exception for applying the forum’s own procedural law? Is characterization a constitutional issue? What if the parties had omitted the contractual limitation in reliance on the Mexican one-year statute of limitations—the statute of the only jurisdiction with any contacts with the case? Would the result have been the same under the Court’s reasoning? Would such a case be different in substance from the actual Dick case?
(3) Why didn’t the defendants in Dick invoke the full faith and credit clause? Is there a good reason for state courts to pay more respect to the laws of sister-states than the laws of sovereign nations?
(4) Does the Court’s discussion of public policy mean that a state may never invoke its public policy when it has insufficient contacts with a case? (“[Texas] may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them.”) Does the Court’s position mean, for example, that Texas would be required by the due process clause to award damages for breach of a contract for the sale of slaves if the contract was legal in the country to which it was confined?
(5) What is the nature of the due process violation in the Dick case? Does due process incorporate some territorial principle per se? If so, where is that territorial principle to be found in the language of the clause or its legislative history? If the Court relies on some notion that the Mexican insurance company had some right to rely on the contractual clause not to be sued, and that such right was “property” protected by the due process clause, doesn’t its reasoning beg the question? That is, the “right” in question can be “property” only if it really is a right, and it is a right under Mexican law but not under Texas law. Thus, one must first decide that, as a matter of constitutional law concerning the due process clause, Mexican law was the only applicable law. We’re back where we started. These matters are discussed at great length in Martin, Constitutional Limitations on Choice of Law, 61 Cornell L. Rev. 185, 188-191 (1976); Kirgis, The Roles of Due Process and Full Faith and Credit in Choice of Law, 62 Cornell L. Rev. 94 (1976); and Martin, A Reply to Professor Kirgis, id. at 62.
(6) What if the Texas law in question had disfavored Dick—would that have made a difference? In other words, is there any difference, from a due process perspective, between a state’s applying its own law to aid a resident against a nonresident and a state’s use of its own law to aid a nonresident against a resident?
(7) The Court in Dick states that Dick was “a citizen of Texas” and a “permanent residen[t],” and added that “[t]he fact that Dick’s permanent residence was in Texas is without significance.” Does this mean that Dick was domiciled in Texas? If so, does Dick stand for the proposition that a state’s interest in applying its plaintiff-protecting law to a domiciliary is “without significance” to the validity, under the due process clause, of applying that law? What, then, are the implications of the due process clause for interest analysis? For discussion of these issues, see Rensberger, Who Was Dick? Constitutional Limitations on State Choice of Law, 1998 Utah L. Rev. 37. For an argument that considerations of fairness to the defendant should sometimes trump state interests in protecting plaintiffs, see Brilmayer, Rights, Fairness, and Choice of Law, 99 Yale L.J. 1277 (1989).
(8) Is there any pattern in the following cases, all decided within a few years after Dick?
(a) Delta & Pine Land Company had its principal place of business in Tennessee but did business in Mississippi. It entered an insurance contract against employee embezzlement with Hartford Accident & Indemnity Company, which was based in Connecticut but did business both in Mississippi and Tennessee. An employee of the land company embezzled some money in Mississippi. By the time of litigation, the land company had moved its chief place of business to Mississippi. The courts of Mississippi, where the action was brought, were asked to apply a Mississippi statute voiding contractual limitations on the period in which suit could be brought. The Supreme Court, in Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143 (1934), held that Mississippi could not apply its own statute. “Conceding that ordinarily a state may prohibit performance within its borders even of a contract validly made elsewhere, if the performance would violate its laws … it may not, on grounds of policy, ignore a right which has lawfully vested elsewhere, if, as here, the interest of the forum had but slight connection with the substance of the contract obligations.” 292 U.S. at 149-150.
(b) A New Jersey resident allowed his car to be driven by another to New York, where the driver injured the plaintiff. The plaintiff sued the owner of the car, invoking a New York statute imposing vicarious liability on owners. This time the Supreme Court upheld the application of New York law as against a due process attack. Young v. Masci, 289 U.S. 253 (1933).
(c) In Skiriotes v. Florida, 313 U.S. 69 (1941), the Supreme Court upheld the right of Florida to prosecute a sponge fisher for using mechanical apparatuses (diving suits, etc.) in fishing for sponges outside but adjacent to Florida’s territorial waters against a due process attack. The Court placed considerable emphasis on the fact that the defendant was a citizen of Florida and on the state’s right to regulate the conduct of its citizens, even outside its borders. What if the complained-of activity had taken place within the territorial waters of an adjoining state, which encouraged the use of mechanical aids, rather than in international waters? What if the defendant had moved to another state before doing his sponge fishing?
Are these cases consistent with Dick?
(9) As the Supreme Court continued to consider constitutional limitations on choice of law, it decided cases both under the due process clause and the full faith and credit clause. Although the distinction was not always clear, it appeared that the essence of the due process limitations was that a state had to have some minimal contacts in order to apply its own law under the due process clause. There was some indication that even a state with sufficient contacts to satisfy due process might be forbidden from applying its own law under full faith and credit if there were some strong reason to favor the law of another state—overwhelmingly stronger contacts, much greater interest, uniformity of treatment, or the like. In one case, Order of Commercial Travelers v. Wolfe, 331 U.S. 586 (1947), for example, the Court used the full faith and credit clause to strike down a state’s application of its own law when there were clearly enough contacts to satisfy due process.
Nonetheless, the distinctions between the two constitutional limitations began to blur. Wolfe was confined to its particular subject matter, fraternal benefit organizations (where, arguably, all members, even from different states, should be subject to a single law in order to avoid unequal treatment). And in a pair of worker compensation cases that were widely viewed as stating principles of general applicability, the Court seemed to reject the notion that a state with enough contacts to satisfy due process could be prevented from applying its own law by the full faith and credit clause. The first case, Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532 (1935), ruled that the state where an employment relationship had been formed could apply its own worker compensation law to an employee injured in another state. The second case is reproduced below.
Pacific Employers Insurance Co. v. Industrial Accident Commission
306 U.S. 493 (1939)
Justice STONE delivered the opinion of the Court.
The question is whether the full faith and credit which the Constitution requires to be given to a Massachusetts workmen’s compensation statute precludes California from applying its own workmen’s compensation act in the case of an injury suffered by a Massachusetts employee of a Massachusetts employer while in California in the course of his employment.
The injured employee, a resident of Massachusetts, was regularly employed there under written contract in the laboratories of the Dewey & Almy Chemical Company as a chemical engineer and research chemist. In September, 1935, in the usual course of his employment he was sent by his employer to its branch factory in California, to act temporarily as technical adviser in the effort to improve the quality of one of the employer’s products manufactured there.
[The injured employee] instituted the present proceeding before the California Commission for the award of compensation under the California Act for injuries received in the course of his employment in that state, naming petitioner as insurance carrier under that Act. The California Commission directed petitioner to pay the compensation prescribed by the California Act, including the amounts of lien claims filed in the proceeding for medical, hospital and nursing services and certain further amounts necessary for such services in the future.
By the applicable Massachusetts statute, §§24, 26, c. 152, Mass. Gen. Laws (Ter. Ed. 1932), an employee of a person insured under the Act, as was the employer in this case, is deemed to waive his “right of action at common law or under the law of any other jurisdiction” to recover for personal injuries unless he shall have given appropriate notice to the employer in writing that he elects to retain such rights. Section 26 directs that without the notice his right to recover be restricted to the compensation provided by the Act for injuries received in the course of his employment, “whether within or without the commonwealth.”
Section 27 (a) [of the California Workmen’s Compensation statute] provides that “No contract, rule, or regulation shall exempt the employer from liability for the compensation fixed by this act.” And §58 provides that the commission shall have jurisdiction over claims for compensation for injuries suffered outside the state when the employee’s contract of hire was entered into within the state. Both statutes are compensation acts, substituted for the common law remedy for negligence. The California Act is compulsory. The Massachusetts Act is similarly effective unless the employee gives notice not to be bound by it, which in this case he did not do.
[Petitioner] insists that since the contract of employment was entered into in Massachusetts and the employee consented to be bound by the Massachusetts Act, that, and not the California statute, fixes the employee’s right to compensation whether the injuries were received within or without the state, and that the Massachusetts statute is constitutionally entitled to full faith and credit in the courts of California.
We may assume that these provisions are controlling upon the parties in Massachusetts, and that since they are applicable to a Massachusetts contract of employment between a Massachusetts employer and employee, they do not infringe due process. Similarly the constitutionality of the provisions of the California statute awarding compensation for injuries to an employee occurring within its borders, and for injuries as well occurring elsewhere, when the contract of employment was entered into within the state, is not open to question. Alaska Packers Assn. v. Industrial Accident Commn., 294 U.S. 532 (1935).
While in the circumstances now presented, either state, if its system for administering workmen’s compensation permitted, would be free to adopt and enforce the remedy provided by the statute of the other, here each has provided for itself an exclusive remedy for a liability which it was constitutionally authorized to impose. But neither is bound, apart from the compulsion of the full faith and credit clause, to enforce the laws of the other; and the law of neither can by its own force determine the choice of law to be applied in the other.
To the extent that California is required to give full faith and credit to the conflicting Massachusetts statute it must be denied the right to apply in its own courts its own statute, constitutionally enacted in pursuance of its policy to provide compensation for employees injured in their employment within the state. It must withhold the remedy given by its own statute to its residents by way of compensation for medical, hospital and nursing services rendered to the injured employee, and it must remit him to Massachusetts to secure the administrative remedy which that state has provided. We cannot say that the full faith and credit clause goes so far.
While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling 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. As was pointed out in Alaska Packers Assn. v. Industrial Accident Commn.: “A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.” And in cases like the present it would create an impasse which would often leave the employee remediless. Full faith and credit would deny to California the right to apply its own remedy, and its administrative machinery may well not be adapted to giving the remedy afforded by Massachusetts. Similarly, the full faith and credit demanded for the California Act would deny to Massachusetts the right to apply its own remedy, and its Department of Industrial Accidents may well be without statutory authority to afford the remedy provided by the California statute.
It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. And in the case of statutes, the extrastate effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.
This Court must determine for itself how far the full faith and credit clause compels the qualification or denial of rights asserted under the laws of one state, that of the forum, by the statute of another state. But there would seem to be little room for the exercise of that function when the statute of the forum is the expression of domestic policy, in terms declared to be exclusive in its application to persons and events within the state. Although Massachusetts has an interest in safeguarding the compensation of Massachusetts employees while temporarily abroad in the course of their employment, and may adopt that policy for itself, that could hardly be thought to support an application of the full faith and credit clause which would override the constitutional authority of another state to legislate for the bodily safety and economic protection of employees injured within it. Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power. Considerations of less weight led to the conclusion, in Alaska Packers Assn. v. Industrial Accident Commn., supra, that the full faith and credit clause did not require California to give effect to the Alaska Compensation Act in preference to its own. There this Court sustained the award by California of the compensation provided by its own statute for employees where the contract of employment was made within the state, although the injury occurred in Alaska, whose statute also provided compensation for the injury. Decision was rested explicitly upon the grounds that the full faith and credit exacted for the statute of one state does not necessarily preclude another state from enforcing in its own courts its own conflicting statute having no extra-territorial operation forbidden by the Fourteenth Amendment, and that no persuasive reason was shown for denying that right.
Here, California legislation not only conflicts with that of Massachusetts providing compensation for the Massachusetts employee if injured within the state of California, but it expressly provides, for the guidance of its own commission and courts, that “No contract, rule or regulation shall exempt the employer from liability for the compensation fixed by this Act.” The Supreme Court of California has declared in its opinion in this case that it is the policy of the state, as expressed in its Constitution and Compensation Act, to apply its own provisions for compensation, to the exclusion of all others, and that “It would be obnoxious to that policy to deny persons who have been injured in this state the right to apply for compensation when to do so might require physicians and hospitals to go to another state to collect charges for medical care and treatment given to such persons.”
Full faith and credit does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.
Questions and Comments
(1) What type of state laws are governed by the full faith and credit clause? There is a general consensus that the framers intended the clause to apply to state statutes (which is what they meant by “public acts”), but a debate over whether they intended it to extend to common law rules. Compare Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 290-295 (1992) (common law rules included within “judicial proceedings”) with Whitten, The Constitutional Limitations on State Choice of Law: Full Faith and Credit, 12 Mem. St. U. L. Rev. 1, 56-60 (1981) (common law rules not included). Pacific Employers confirmed that the clause regulates state statutes. The Court later made clear that the clause applies to clashes of common law rules as well. See Carroll v. Lanza, 349 U.S. 408 (1955).
(2) What does it mean, for choice-of-law purposes, for a state to give full faith and credit to the laws of other states? Does the text of the clause suggest anything about which state choice-of-law rules are appropriate or acceptable? Most commentators believe that, as an original matter, the clause incorporated traditional choice-of-law rules from international law, subject to Congress’s implementation power under Article IV. See Sun Oil v. Wortman, 486 U.S. 717, 723 (1988), reproduced below at page 333; Rheinstein, The Constitutional Basis of Jurisdiction, 22 U. Chi. L. Rev. 775, 788-789, 816 (1955). But the Supreme Court did not actually regulate state choice-of-law rules under the full faith and credit clause until the twentieth century. See Whitten, supra note (1).
(3) Does Pacific Employers stand for the proposition that any state with an interest in applying its law can do so, consistent with full faith and credit, even if other states have similar interests? How do we identify such state interests? Pacific Employers says that the state of injury has an interest in applying its law for full faith and credit purposes. The case that preceded it, Alaska Packers, discussed supra 302, held that the state where an employment relationship formed has an interest (for full faith and credit purposes) in applying its workers’ compensation scheme, even if the injury took place in another state. Do these decisions constitutionalize interest analysis or does the Court have a different conception of state interests in mind? Why does the full faith and credit clause focus on the interests of the state whose law is being applied instead of the interests of the state whose law is not being applied?
(4) How does the due process limitation on choice-of-law rules differ from the full faith and credit limitation? Is it correct to say that due process concerns the fairness of applying a particular state law to the defendant, while full faith and credit concerns the need to respect the sovereign prerogatives of other states? These two sets of considerations are contrasted in Kogan, Toward a Jurisprudence of Choice of Law: The Priority of Fairness over Comity, 62 N.Y.U. L. Rev. 651 (1987).
Watson v. Employers Liability Assurance Corp.
348 U.S. 66 (1954)
Justice BLACK delivered the opinion of the Court.
Louisiana has an insurance code which comprehensively regulates the business of insurance in all its phases. This case brings to us challenges to the constitutionality of certain provisions of that code allowing injured persons to bring direct actions against liability insurance companies that have issued policies contracting to pay liabilities imposed on persons who inflict injury. This is such a direct action brought by the appellants, Mr. and Mrs. Watson, in a Louisiana state court claiming damages against the appellee, Employers Liability Assurance Corporation, Ltd., on account of alleged personal injuries suffered by Mrs. Watson. The complaint charged that the injuries occurred in Louisiana when Mrs. Watson bought and used in that State “Toni Home Permanent” a hair-waving product alleged to have contained a highly dangerous latent ingredient put there by its manufacturer. The manufacturer is the Toni Company of Illinois, a subsidiary of the Gillette Safety Razor Company which has its headquarters in Massachusetts.
The particular problem presented with reference to enforcing the Louisiana statute in this case arises because the insurance policy sued on was negotiated and issued in Massachusetts and delivered in Massachusetts and Illinois.1 This Massachusetts-negotiated contract contains a clause, recognized as binding and enforceable under Massachusetts and Illinois law, which prohibits direct actions against the insurance company until after final determination of the Toni Company’s obligation to pay personal injury damages either by judgment or agreement. Contrary to this contractual “no action” clause, the challenged statutory provisions permit injured persons to sue an insurance company before such final determination. As to injuries occurring in Louisiana, one provision of the State’s direct action statute makes it applicable, even though, as here, an insurance contract is made in another state and contains a clause forbidding such direct actions. Another Louisiana statutory provision, with which Employers long ago complied, compels foreign insurance companies to consent to such direct suits in order to get a certificate to do business in the State. The basic issue raised by the attack on both these provisions is whether the Federal Constitution forbids Louisiana to apply its own law and compels it to apply the law of Massachusetts or Illinois.
Had the policy sued on been issued in Louisiana there would be no arguable due process question. But because the policy was bought, issued and delivered outside of Louisiana, Employers invokes the due process principle that a state is without power to exercise “extraterritorial jurisdiction,” that is, to regulate and control activities wholly beyond its boundaries. Such a principle was recognized and applied in Home Ins. Co. v. Dick, a case strongly relied on by Employers.
Some contracts made locally, affecting nothing but local affairs, may well justify a denial to other states of power to alter those contracts. But, as this case illustrates, a vast part of the business affairs of this Nation does not present such simple local situations. Although this insurance contract was issued in Massachusetts, it was to protect Gillette and its Illinois subsidiary against damages on account of personal injuries that might be suffered by users of Toni Home Permanents anywhere in the United States, its territories, or in Canada. As a consequence of the modern practice of conducting widespread business activities throughout the entire United States, this Court has in a series of cases held that more states than one may seize hold of local activities which are part of multistate transactions and may regulate to protect interests of its own people, even though other phases of the same transactions might justify regulatory legislation in other states.
Louisiana’s direct action statute is not a mere intermeddling in affairs beyond her boundaries which are no concern of hers. Persons injured or killed in Louisiana are most likely to be Louisiana residents, and even if not, Louisiana may have to care for them. Serious injuries may require treatment in Louisiana homes or hospitals by Louisiana doctors. The injured may be destitute. They may be compelled to call upon friends, relatives, or the public for help. Louisiana has manifested its natural interest in the injured by providing remedies for recovery of damages. It has a similar interest in policies of insurance which are designed to assure ultimate payment of such damages. Moreover, Louisiana courts in most instances provide the most convenient forum for trial of these cases. But modern transportation and business methods have made it more difficult to serve process on wrongdoers who live or do business in other states. In this case efforts to serve the Gillette Company were answered by a motion to dismiss on the ground that Gillette had no Louisiana agent on whom process could be served. If this motion is granted, Mrs. Watson, but for the direct action law, could not get her case tried without going to Massachusetts or Illinois although she lives in Louisiana and her claim is for injuries from a product bought and used there. What has been said is enough to show Louisiana’s legitimate interest in safeguarding the rights of persons injured there. In view of that interest, the direct action provisions here challenged do not violate due process.
What we have said above goes far toward answering the Full Faith and Credit Clause contention. That clause does not automatically compel a state to subordinate its own contract laws to the laws of another state in which a contract happens to have been formally executed. Where, as here, a contract affects the people of several states, each may have interests that leave it free to enforce its own contract policies. We have already pointed to the vital interests of Louisiana in liability insurance that covers injuries to people in that State. Of course Massachusetts also has some interest in the policy sued on in this case. The insurance contract was formally executed in that State and Gillette has an office there. But plainly these interests cannot outweigh the interest of Louisiana in taking care of those injured in Louisiana. Since this is true, the Full Faith and Credit Clause does not compel Louisiana to subordinate its direct action provisions to Massachusetts contract rules. Pacific Employers Ins. Co. v. Commission.
Clay v. Sun Insurance Office, Ltd.
377 U.S. 179 (1964)
Justice DOUGLAS delivered the opinion of the Court.
This case, which invoked the diversity jurisdiction of the Federal District Court in a suit to recover damages under an insurance policy, was here before.… The initial question then as now is whether the 12-month-suit clause in the policy governs, in which event the claim is barred, or whether Florida’s statutes nullifying such clauses if they require suit to be filed in less than five years are applicable and valid, in which event the suit is timely. The policy was purchased by petitioner in Illinois while he was a citizen and resident of that State. Respondent, a British company, is licensed to do business in Illinois, Florida, and several other States.
A few months after purchasing the policy, petitioner moved to Florida and became a citizen and resident of that State; and it was in Florida that the loss occurred two years later. When the case reached here, the majority view was that the underlying constitutional question—whether consistently with due process, Florida could apply its five-year statute to this Illinois contract—should not be reached until the Florida Supreme Court, through its certificate procedure, had construed that statute and resolved another local law question. On remand the Court of Appeals certified the two questions to the Florida Supreme Court, which answered both questions in petitioner’s favor. Thereafter the Court of Appeals held that it was not compatible with due process for Florida to apply its five-year statute to this contract and that judgment should be entered for respondent. We again granted certiorari.
While there are Illinois cases indicating that parties may contract—as here—for a shorter period of limitations than is provided by the Illinois statute, we are referred to no Illinois decision extending that rule into other States whenever claims on Illinois contracts are sought to be enforced there. We see no difficulty whatever under either the Full Faith and Credit Clause or the Due Process Clause. We deal with an ambulatory contract on which suit might be brought in any one of several States. Normally, as the Court held in Pacific Employers Ins. Co. v. Industrial Accident Commn., a State having jurisdiction over a claim deriving from an out-of-state employment contract need not substitute the conflicting statute of the other State (workmen’s compensation) for its own statute (workmen’s compensation)—where the employee was injured in the course of his employment while temporarily in the latter State. We followed the same route in Watson v. Employers Liability Assurance Corp. where we upheld a state statute allowing direct actions against liability insurance companies in the State of the forum, even though a clause in the contract, binding in the State where it was made, prohibited direct action against the insurer until final determination of the obligation of the insured.
The Court of Appeals relied in the main on Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., and Home Ins. Co. v. Dick. Those were cases where the activities in the State of the forum were thought to be too slight and too casual, as in the Delta & Pine Land Co. case, to make the application of local law consistent with due process, or wholly lacking, as in the Dick case. No deficiency of that order is present here. As Mr. Justice Black, dissenting, said when this case was here before:
Insurance companies, like other contractors, do not confine their contractual activities and obligations within state boundaries. They sell to customers who are promised protection in States far away from the place where the contract is made. In this very case the policy was sold to Clay with knowledge that he could take his property anywhere in the world he saw fit without losing the protection of his insurance. In fact, his contract was described on its face as a “Personal Property Floater Policy (World Wide).” The contract did not even attempt to provide that the law of Illinois would govern when suits were filed anywhere else in the country. Shortly after the contract was made, Clay moved to Florida and there he lived for several years. His insured property was there all that time. The corporation knew this fact. Particularly since the company was licensed to do business in Florida, it must have known it might be sued there.…
… Florida has ample contacts with the present transaction and the parties to satisfy any conceivable requirement of full faith and credit or of due process.
(1) Is anything left of Home Ins. Co. v. Dick after Watson and Clay?
(2) Although in Watson the entire claim against Gillette arose in Louisiana, the claim against the insurance company necessarily derived in part from the contract between Gillette and the insurance company, entered into elsewhere. Is that fact irrelevant after Pacific Employers since that case is also one where a critical element—the employment relationship—was located outside the forum?
(3) What would the result in Watson have been if the insurance contract in question had not contained a clause requiring the insurance company to defend Gillette? Wouldn’t allowing a suit against the insurance company in Louisiana seem more extreme—more unfair—under those circumstances?
(4) Are the factors listed by Justice Black in Watson in justification of the application of Louisiana law convincing? Consider:
(a) The first interest listed for Louisiana was the likelihood that persons injured in Louisiana would be Louisiana residents. However, is that a sufficient reason for applying Louisiana law, in light of the fact that Dick was a resident of Texas and his residence did not justify application of Texas law in his case?
(b) The fact that there may be medical creditors in Louisiana for someone injured there may provide a desire on Louisiana’s part to provide for local trial, but should medical creditors be singled out? Isn’t it equally likely that there were Texas business creditors of Dick in the Dick case who would have benefited from a recovery by Dick? And if the concern is for the patient, isn’t the danger of discouraging medical treatment by medical creditors likely to turn on more practical questions such as whether the patient is insured?
(c) Justice Black’s third Louisiana interest—that of compensation, as manifested by Louisiana tort law—is more problematical. It should first be noted that Louisiana’s interest in tort compensation is being invoked to allow it to control extra-state contractual relations between the insured and the insurer. Should a state’s interest in X allow it to interfere with a relationship between Y and Z? Shouldn’t the state be required first to find out if there are alternative means to accomplish the same goal? And wouldn’t Louisiana be able to implement its tort law by allowing a suit directly against the tortfeasor, using a long-arm statute? Should the state’s failure to provide itself with a constitutionally approved method of achieving its goals justify it in interfering with the third party’s rights?
(d) The same questions may be raised about Louisiana’s interest in providing a convenient Louisiana trial.
(5) If Watson fails to make an airtight case for distinguishing Dick, can Watson nonetheless be justified on the grounds that the effect of the Louisiana statute is essentially no more than to change the place of trial, since the insurance company would have had to defend Gillette if Gillette had been sued in Massachusetts or Illinois?
On the other hand, even if Watson can be handled by this approach, what of Clay, in which the issue (extending a contractual limitation period) is exactly the same as in Dick?
(6) Is it relevant that in the Clay case the insurance premiums were paid lump-sum in Illinois? (The Supreme Court opinion makes no mention of the fact; it is found in the Court of Appeals decision, 265 F.2d 552, 554 (1959).) If two Americans had bet in the United States whether Chairman Mao could swim the Yangtze River, should the legality of the contract have been controlled by Chinese law? Should the result be different if the defendant had moved to China later? Compare State Board of Insurance v. Todd Shipyards Corp., 370 U.S. 451 (1962). Todd Shipyards declared it a violation of due process for Texas to tax or regulate an insurance policy issued out of state by an out-of-state insurer to an out-of-state insured. The only connection to Texas was that the insured property was located there. Todd Shipyards did not cite Watson; nor was it cited in Clay. Is taxation just somehow “different”?
The Supreme Court’s due process holdings on a state’s right to tax have followed a somewhat tortured path. In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), it overruled earlier precedents and held that a state had a due process right to collect use taxes from mail order merchandisers with no physical presence within the state. A “use” tax is the functional equivalent of a sales tax; it is applied when the sale itself takes place outside the state, but the use occurs within. Prior to Quill, the Court had maintained that the state into which merchandise was sent had no right to impose a duty to collect the tax upon out-of-state sellers; the Court was unanimous in abandoning this holding, relying primarily on personal jurisdiction cases that expanded the reach of the state’s long arm. The Court was split on whether such taxes violated the commerce clause; a majority held that they did. For a discussion of the commerce clause limits on state taxation, see page 362 infra.
(7) The Court held that “[w]e deal with an ambulatory contract on which suit might be brought in any one of several States,” and “[p]articularly since the company was licensed to do business in Florida, it must have known it might be sued there.” Clay, 377 U.S. at 181-82. How are such expectations to be measured? In Burger King Corp. v. Continental Ins. Co., 359 F. Supp. 184 (W.D. Pa. 1973), Burger King sued a New York insurance company to recover on a policy for property damage allegedly caused by an earthquake. Id. at 185-86. The property was located in Pennsylvania, and the policy stated that “[n]o suit … on this policy for the recovery of any claim shall be sustainable … unless commenced within twelve months next after the inception of the loss.” Id. at 186.
However, Burger King brought the suit in Florida approximately 18 months after the Pennsylvania property was damaged. In denying the defendant’s motion for summary judgment, the Court applied Florida law, which stated that any contractual provision “fixing the period of time in which suits may be instituted under any [insurance] contract … at a period of time less than [five years] … are hereby declared to be contrary to the public policy of this state, and to be illegal and void.” Id. Could Continental Insurance have reasonably expected to be sued according to the laws of Florida when it issued an insurance policy in New York on a property in Pennsylvania?
Allstate Insurance Co. v. Hague
449 U.S. 302 (1981)
Justice BRENNAN announced the judgment of the Court and delivered an opinion, in which Justice WHITE, Justice MARSHALL, and Justice BLACKMUN joined.
This Court granted certiorari to determine whether the Due Process Clause of the Fourteenth Amendment or the Full Faith and Credit Clause of Art. IV, §1, of the United States Constitution bars the Minnesota Supreme Court’s choice of substantive Minnesota law to govern the effect of a provision in an insurance policy issued to respondent’s decedent. 444 U.S. 1070 (1980).
Respondent’s late husband, Ralph Hague, died of injuries suffered when a motorcycle on which he was a passenger was struck from behind by an automobile. The accident occurred in Pierce County, Wis., which is immediately across the Minnesota border from Red Wing, Minn. The operators of both vehicles were Wisconsin residents, as was the decedent, who, at the time of the accident, resided with respondent in Hager City, Wis., which is one and one-half miles from Red Wing. Mr. Hague had been employed in Red Wing for the 15 years immediately preceding his death and had commuted daily from Wisconsin to his place of employment.
Neither the operator of the motorcycle nor the operator of the automobile carried valid insurance. However, the decedent held a policy issued by petitioner Allstate Insurance Co. covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists. The uninsured motorist coverage was limited to $15,000 for each automobile.3
After the accident, but prior to the initiation of this lawsuit, respondent moved to Red Wing. Subsequently, she married a Minnesota resident and established residence with her new husband in Savage, Minn. At approximately the same time, a Minnesota Registrar of Probate appointed respondent personal representative of her deceased husband’s estate. Following her appointment, she brought this action in Minnesota District Court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband’s three automobiles could be “stacked” to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred in Wisconsin, and all persons were Wisconsin residents at the time of the accident.
The Minnesota District Court disagreed. Interpreting Wisconsin law to disallow stacking, the court concluded that Minnesota’s choice-of-law rules required the application of Minnesota law permitting stacking. The court refused to apply Wisconsin law as “inimical to the public policy of Minnesota” and granted summary judgment for respondent.
The Minnesota Supreme Court, sitting en banc, affirmed the District Court. The court, also interpreting Wisconsin law to prohibit stacking,6 applied Minnesota law after analyzing the relevant Minnesota contacts and interests within the analytical framework developed by Professor Leflar.…7 Although stating that the Minnesota contacts might not be, “in themselves, sufficient to mandate application of [Minnesota] law,”8 under the first four factors, the court concluded that the fifth factor—application of the better rule of law—favored selection of Minnesota law. The court emphasized that a majority of States allow stacking and that legal decisions allowing stacking “are fairly recent and well considered in light of current uses of automobiles.” In addition, the court found the Minnesota rule superior to Wisconsin’s “because it requires the cost of accidents with uninsured motorists to be spread more broadly through insurance premiums than does the Wisconsin rule.” Finally, after rehearing en banc, the court buttressed its initial opinion by indicating “that contracts of insurance on motor vehicles are in a class by themselves” since an insurance company “knows the automobile is a movable item which will be driven from state to state.” From this premise the court concluded that application of Minnesota law was “not so arbitrary and unreasonable as to violate due process.”
It is not for this Court to say whether the choice-of-law analysis suggested by Professor Leflar is to be preferred or whether we would make the same choice-of-law decision if sitting as the Minnesota Supreme Court. Our sole function is to determine whether the Minnesota Supreme Court’s choice of its own substantive law in this case exceeded federal constitutional limitations. Implicit in this inquiry is the recognition, long accepted by this Court, that a set of facts giving rise to a lawsuit, or a particular issue within a lawsuit, may justify, in constitutional terms, application of the law of more than one jurisdiction. See, e.g., Watson v. Employers Liability Assurance Corp. See generally Clay v. Sun Insurance Office, Ltd. (hereinafter cited as Clay II). As a result, the forum State may have to select one law from among the laws of several jurisdictions having some contact with the controversy.
In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause,10 this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. See Clay II, supra. In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair, see Alaska Packers Assn. v. Industrial Accident Commn., the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.11
Two instructive examples of such invalidation are Home Ins. Co. v. Dick, and John Hancock Mutual Life Ins. Co. v. Yates. In both cases, the selection of forum law rested exclusively on the presence of one nonsignificant forum contact. [The Court described the facts and holding of Dick.]
The relationship of the forum State to the parties and the transaction was similarly attenuated in John Hancock Mutual Life Ins. Co. v. Yates. There, the insurer, a Massachusetts corporation, issued a contract of insurance on the life of a New York resident. The contract was applied for, issued, and delivered in New York where the insured and his spouse resided. After the insured died in New York, his spouse moved to Georgia and brought suit on the policy in Georgia. Under Georgia law, the jury was permitted to take into account oral modifications when deciding whether an insurance policy application contained material misrepresentations. Under New York law, however, such misrepresentations were to be evaluated solely on the basis of the written application. The Georgia court applied Georgia law. This Court reversed, finding application of Georgia law to be unconstitutional.
Dick and Yates stand for the proposition that if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional. Dick concluded that nominal residence—standing alone—was inadequate; Yates held that a post-occurrence change of residence to the forum State—standing alone—was insufficient to justify application of forum law. Although instructive as extreme examples of selection of forum law, neither Dick or Yates governs this case. For in contrast to those decisions, here the Minnesota contacts with the parties and the occurrence are obviously significant. Thus, this case is like Alaska Packers … and Clay II—cases where this Court sustained choice-of-law decisions based on the contacts of the State, whose law was applied, with the parties and occurrence.
The lesson from Dick and Yates, which found insufficient forum contacts to apply forum law, and from Alaska Packers … and Clay II, which found adequate contacts to sustain the choice of forum law, is that for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. Application of this principle to the facts of this case persuades us that the Minnesota Supreme Court’s choice of its own law did not offend the Federal Constitution.
Minnesota has three contacts with the parties and the occurrence giving rise to the litigation. In the aggregate, these contacts permit selection by the Minnesota Supreme Court of Minnesota law allowing the stacking of Mr. Hague’s uninsured motorist coverages.
First, and for our purposes a very important contact, Mr. Hague was a member of Minnesota’s work force, having been employed by a Red Wing, Minn., enterprise for the 15 years preceding his death. While employment status may implicate a state interest less substantial than does resident status, that interest is nevertheless important. The State of employment has police power responsibilities towards the nonresident employee that are analogous, if somewhat less profound, than towards residents. Thus, such employees use state services and amenities and may call upon state facilities in appropriate circumstances.
In addition, Mr. Hague commuted to work in Minnesota …, and was presumably covered by his uninsured motorist coverage during the commute. The State’s interest in its commuting nonresident employees reflects a state concern for the safety and well-being of its work force and the concomitant effect on Minnesota employers.
That Mr. Hague was not killed while commuting to work or while in Minnesota does not dictate a different result. To hold that the Minnesota Supreme Court’s choice of Minnesota law violated the Constitution for that reason would require too narrow a view of Minnesota’s relationship with the parties and the occurrence giving rise to the litigation. An automobile accident need not occur within a particular jurisdiction for that jurisdiction to be connected to the occurrence.
Similarly, the occurrence of a crash fatal to a Minnesota employee in another State is a Minnesota contact. If Mr. Hague had only been injured and missed work for a few weeks, the effect on the Minnesota employer would have been palpable and Minnesota’s interest in having its employee made whole would be evident. Mr. Hague’s death affects Minnesota’s interest still more acutely, even though Mr. Hague will not return to the Minnesota work force. Minnesota’s work force is surely affected by the level of protection the State extends to it, either directly or indirectly. Vindication of the rights of the estate of a Minnesota employee, therefore, is an important state concern.
Mr. Hague’s residence in Wisconsin does not—as Allstate seems to argue—constitutionally mandate application of Wisconsin law to the exclusion of forum law. If, in the instant case, the accident had occurred in Minnesota between Mr. Hague and an uninsured Minnesota motorist, if the insurance contract had been executed in Minnesota covering a Minnesota registered company automobile which Mr. Hague was permitted to drive, and if a Wisconsin court sought to apply Wisconsin law, certainly Mr. Hague’s residence in Wisconsin, his commute between Wisconsin and Minnesota, and the insurer’s presence in Wisconsin should be adequate to apply Wisconsin’s law.22 Employment status is not a sufficiently less important status than residence, when combined with Mr. Hague’s daily commute across state lines and the other Minnesota contacts present, to prohibit the choice-of-law result in this case on constitutional grounds.
Second, Allstate was at all times present and doing business in Minnesota. By virtue of its presence, Allstate can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. “Particularly since the company was licensed to do business in [the forum], it must have known it might be sued there, and that [the forum] courts would feel bound by [forum] law.”24 Clay v. Sun Insurance Offices Ltd. (Black, J., dissenting). Moreover, Allstate’s presence in Minnesota gave Minnesota an interest in regulating the company’s insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative—respondent—and a longstanding member of Minnesota’s work force—Mr. Hague.
Third, respondent became a Minnesota resident prior to institution of this litigation. The stipulated facts reveal that she first settled in Red Wing, Minn., the town in which her late husband had worked. She subsequently moved to Savage, Minn., after marrying a Minnesota resident who operated an automobile service station in Bloomington, Minn. Her move to Savage occurred “almost concurrently,” with the initiation of the instant case. There is no suggestion that Mrs. Hague moved to Minnesota in anticipation of this litigation or for the purpose of finding a legal climate especially hospitable to her claim.28 The stipulated facts, sparse as they are, negate any such inference.
While John Hancock Mutual Life Ins. Co. v. Yates held that a post-occurrence change of residence to the forum State was insufficient in and of itself to confer power on the forum State to choose its law, that case did not hold that such a change of residence was irrelevant. Here, of course, respondent’s bona fide residence in Minnesota was not the sole contact Minnesota had with this litigation. And in connection with her residence in Minnesota, respondent was appointed personal representative of Mr. Hague’s estate by the Registrar of Probate for the County of Goodhue, Minn. Respondent’s residence and subsequent appointment in Minnesota as personal representative of her late husband’s estate constitute a Minnesota contact which gives Minnesota an interest in respondent’s recovery, an interest which the court below identified as full compensation for “resident accident victims” to keep them “off welfare rolls” and able “to meet financial obligations.”
In sum, Minnesota had a significant aggregation29 of contacts with the parties and the occurrence, creating state interests, such that application of its law was neither arbitrary nor fundamentally unfair. Accordingly, the choice of Minnesota law by the Minnesota Supreme Court did not violate the Due Process Clause or the Full Faith and Credit Clause.
Justice STEWART took no part in the consideration or decision of this case.
Justice STEVENS, concurring in the judgment. As I view this unusual case—in which neither precedent nor constitutional language provides sure guidance—two separate questions must be answered. First, does the Full Faith and Credit Clause require Minnesota, the forum State, to apply Wisconsin law? Second, does the Due Process Clause of the Fourteenth Amendment prevent Minnesota from applying its own law? The first inquiry implicates the federal interest in ensuring that Minnesota respect the sovereignty of the State of Wisconsin; the second implicates the litigants’ interest in a fair adjudication of their rights.3
I realize that both this court’s analysis of choice-of-law questions and scholarly criticism of those decisions have treated these two inquiries as though they were indistinguishable. Nevertheless, I am persuaded that the two constitutional provisions protect different interests and that proper analysis requires separate consideration of each.
The Full Faith and Credit Clause is one of several provisions in the Federal Constitution designed to transform the several States from independent sovereignties into a single, unified Nation. The Full Faith and Credit Clause implements this design by directing that a State, when acting as the forum for litigation having multistate aspects or implications, respect the legitimate interests of other States and avoid infringement upon their sovereignty. The Clause does not, however, rigidly require the forum State to apply foreign law whenever another State has a valid interest in the litigation. On the contrary, in view of the fact that the forum State is also a sovereign in its own right, in appropriate cases it may attach paramount importance to its own legitimate interests. Accordingly, the fact that a choice-of-law decision may be unsound as a matter of conflicts law does not necessarily implicate the federal concerns embodied in the Full Faith and Credit Clause. Rather, in my opinion, the Clause should not invalidate a state court’s choice of forum law unless that choice threatens the federal interest in national unity by unjustifiably infringing upon the legitimate interests of another State.
In this case, I think the Minnesota courts’ decision to apply Minnesota law was plainly unsound as a matter of normal conflicts law. Both the execution of the insurance contract and the accident giving rise to the litigation took place in Wisconsin. Moreover, when both of those events occurred, the plaintiff, the decedent, and the operators of both vehicles were all residents of Wisconsin. Nevertheless, I do not believe that any threat to national unity or Wisconsin’s sovereignty ensues from allowing the substantive question presented by this case to be determined by the law of another State.
The question on the merits is one of interpreting the meaning of the insurance contract. Neither the contract itself, nor anything else in the record, reflects any express understanding of the parties with respect to what law would be applied or with respect to whether the separate uninsured motorist coverage for each of the decedent’s three cars could be “stacked.” Since the policy provided coverage for accidents that might occur in other States, it was obvious to the parties at the time of contracting that it might give rise to the application of the law of States other than Wisconsin. Therefore, while Wisconsin may have an interest in ensuring that contracts formed in Wisconsin in reliance upon Wisconsin law are interpreted in accordance with that law, that interest is not implicated in this case.
Petitioner has failed to establish that Minnesota’s refusal to apply Wisconsin law poses any direct or indirect threat to Wisconsin’s sovereignty.13 In the absence of any such threat, I find it unnecessary to evaluate the forum State’s interest in the litigation in order to reach the conclusion that the Full Faith and Credit Clause does not require the Minnesota courts to apply Wisconsin law to the question of contract interpretation presented in this case.
It may be assumed that a choice-of-law decision would violate the Due Process Clause if it were totally arbitrary or if it were fundamentally unfair to either litigant. I question whether a judge’s decision to apply the law of his own State could ever be described as wholly irrational. For judges are presumably familiar with their own state law and may find it difficult and time consuming to discover and apply correctly the law of another State. The forum State’s interest in the fair and efficient administration of justice is therefore sufficient, in my judgment, to attach a presumption of validity to a forum State’s decision to apply its own law to a dispute over which it has jurisdiction.
The forum State’s interest in the efficient operation of its judicial system is clearly not sufficient, however, to justify the application of a rule of law that is fundamentally unfair to one of the litigants. Arguably, a litigant could demonstrate such unfairness in a variety of ways. Concern about the fairness of the forum’s choice of its own rule might arise if that rule favored residents over nonresidents, if it represented a dramatic departure from the rule that obtains in most American jurisdictions, or if the rule itself was unfair on its face or as applied.15
The application of an otherwise acceptable rule of law may result in unfairness to the litigants if, in engaging in the activity which is the subject of the litigation, they could not reasonably have anticipated that their actions would later be judged by this rule of law. A choice-of-law decision that frustrates the justifiable expectations of the parties can be fundamentally unfair. This desire to prevent unfair surprise to a litigant has been the central concern in this Court’s review of choice-of-law decisions under the Due Process Clause.16
Neither the “stacking” rule itself, nor Minnesota’s application of that rule to these litigants, raises any serious questions of fairness. As the plurality observes, “[s]tacking was the rule in most States at the time the policy was issued.” Moreover, the rule is consistent with the economics of a contractual relationship in which the policyholder paid three separate premiums for insurance coverage for three automobiles, including a separate premium for each uninsured motorist coverage. Nor am I persuaded that the decision of the Minnesota courts to apply the “stacking” rule in this case can be said to violate due process because that decision frustrates the reasonable expectations of the contracting parties.
Contracting parties can, of course, make their expectations explicit by providing in their contract either that the law of a particular jurisdiction shall govern questions of contract interpretation, or that a particular substantive rule, for instance “stacking,” shall or shall not apply.20 In the absence of such express provisions, the contract nonetheless may implicitly reveal the expectations of the parties. For example, if a liability insurance policy issued by a resident of a particular State provides coverage only with respect to accidents within that State, it is reasonable to infer that the contracting parties expected that their obligations under the policy would be governed by that State’s law.
In this case, no express indication of the parties’ expectations is available. The insurance policy provided coverage for accidents throughout the United States; thus, at the time of contracting, the parties certainly could have anticipated that the laws of States other than Wisconsin would govern particular claims arising under the policy. By virtue of doing business in Minnesota, Allstate was aware that it could be sued in the Minnesota courts; Allstate also presumably was aware that Minnesota law, as well as the law of most States, permitted “stacking.” Nothing in the record requires that a different inference be drawn. Therefore, the decision of the Minnesota courts to apply the law of the forum in this case does not frustrate the reasonable expectations of the contracting parties, and I can find no fundamental unfairness in that decision requiring the attention of this Court.23
In terms of fundamental fairness, it seems to me that two factors relied upon by the plurality—the plaintiff’s post-accident move to Minnesota and the decedent’s Minnesota employment—are either irrelevant to or possibly even tend to undermine the plurality’s conclusions. When the expectations of the parties at the time of contracting are the central due process concern, as they are in this case, an unanticipated post-accident occurrence is clearly irrelevant for due process purposes. The fact that the plaintiff became a resident of the forum State after the accident surely cannot justify a ruling in her favor that would not be made if the plaintiff were a nonresident. Similarly, while the fact that the decedent regularly drove into Minnesota might be relevant to the expectations of the contracting parties,24 the fact that he did so because he was employed in Minnesota adds nothing to the due process analysis. The choice-of-law decision of the Minnesota courts is consistent with due process because it does not result in unfairness to either litigant, not because Minnesota now has an interest in the plaintiff as resident or formerly had an interest in the decedent as employee.
Although I regard the Minnesota courts’ decision to apply forum law as unsound as a matter of conflicts law, and there is little in this record other than the presumption in favor of the forum’s own law to support that decision, I concur in the plurality’s judgment. It is not this Court’s function to establish and impose upon state courts a federal choice-of-law rule, nor is it our function to ensure that state courts correctly apply whatever choice-of-law rules they have themselves adopted.25 Our authority may be exercised in the choice-of-law area only to prevent a violation of the Full Faith and Credit or the Due Process Clause. For the reasons stated above, I find no such violation in this case.
Justice POWELL, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.
My disagreement with the plurality is narrow. I accept with few reservations Part II of the plurality opinion, which sets forth the basic principles that guide us in reviewing state choice-of-law decisions under the Constitution. The Court should invalidate a forum State’s decision to apply its own law only when there are no significant contacts between the State and the litigation. This modest check on state power is mandated by the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Art. IV, §1. I do not believe, however, that the plurality adequately analyzes the policies such review must serve. In consequence, it has found significant what appear to me to be trivial contacts between the forum State and the litigation.
… The significance of asserted contacts must be evaluated in light of the constitutional policies that oversight by this Court should serve. Two enduring policies emerge from our cases.
First, the contacts between the forum State and the litigation should not be so “slight and casual” that it would be fundamentally unfair to a litigant for the forum to apply its own State’s law. Clay v. Sun Ins. Office, Ltd. The touchstone here is the reasonable expectation of the parties.
Second, the forum State must have a legitimate interest in the outcome of the litigation before it. Pacific Ins. Co. v. Industrial Accident Commn. The Full Faith and Credit Clause addresses the accommodation of sovereign power among the various States. Under limited circumstances, it requires one State to give effect to the statutory law of another State. To be sure, a forum State need not give effect to another State’s law if that law is in “violation of its own legitimate public policy.” Nonetheless, for a forum State to further its legitimate public policy by applying its own law to a controversy, there must be some connection between the facts giving rise to the litigation and the scope of the State’s lawmaking jurisdiction.
Both the Due Process and Full Faith and Credit Clauses ensure that the States do not “reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson (addressing Fourteenth Amendment limitation on state-court jurisdiction). As the Court stated in Pacific Ins. Co., supra: “[T]he full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state.” (Emphasis added.) The State has a legitimate interest in applying a rule of decision to the litigation only if the facts to which the rule will be applied have created effects within the State, toward which the State’s public policy is directed. To assess the sufficiency of asserted contacts between the forum and the litigation, the court must determine if the contacts form a reasonable link between the litigation and a state policy. In short, examination of contacts addresses whether “the state has an interest in the application of its policy in this instance.” Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, in B. Currie, Selected Essays on the Conflict of Laws 188, 189 (1963). If it does, the Constitution is satisfied.
In summary, the significance of the contacts between a forum State and the litigation must be assessed in light of these two important constitutional policies.3 A contact, or a pattern of contacts, satisfies the Constitution when it protects the litigants from being unfairly surprised if the forum State applies its own law, and when the application of the forum’s law reasonably can be understood to further a legitimate public policy of the forum State.
Recognition of the complexity of the constitutional inquiry requires that this Court apply these principles with restraint. Applying these principles to the facts of this case, I do not believe, however, that Minnesota had sufficient contacts with the “persons and events” in this litigation to apply its rule permitting stacking. I would agree that no reasonable expectations of the parties were frustrated. The risk insured by petitioner was not geographically limited. The close proximity of Hager City, Wis., to Minnesota, and the fact that Hague commuted daily to Red Wing, Minn., for many years should have led the insurer to realize that there was a reasonable probability that the risk would materialize in Minnesota. Under our precedents, it is plain that Minnesota could have applied its own law to an accident occurring within its borders. The fact that the accident did not, in fact, occur in Minnesota is not controlling because the expectations of the litigants before the cause of action accrues provide the pertinent perspective.
The more doubtful question in this case is whether application of Minnesota’s substantive law reasonably furthers a legitimate state interest. The plurality attempts to give substance to the tenuous contacts between Minnesota and this litigation. Upon examination, however, these contacts are either trivial or irrelevant to the furthering of any public policy of Minnesota.
First, the postaccident residence of the plaintiff-beneficiary is constitutionally irrelevant to the choice-of-law question. John Hancock Mut. Life Ins. Co. v. Yates, supra. The plurality today insists that Yates only held that a postoccurrence move to the forum State could not “in and of itself” confer power on the forum to apply its own law, but did not establish that such a change of residence was irrelevant. Ante, at 319. What the Yates court held, however, was that “there was no occurrence, nothing done, to which the law of Georgia could apply.” (Emphasis added.) Any possible ambiguity in the Court’s view of the significance of a postoccurrence change of residence is dispelled by Home Ins. Co. v. Dick, supra, cited by the Yates Court, where it was held squarely that Dick’s postaccident move to the forum State was “without significance.”
This rule is sound. If a plaintiff could choose the substantive rules to be applied to an action by moving to a hospitable forum, the invitation to forum shopping would be irresistible. Moreover, it would permit the defendant’s reasonable expectations at the time the cause of action accrues to be frustrated, because it would permit the choice-of-law question to turn on a post-accrual circumstance. Finally, postaccrual residence has nothing to do with facts to which the forum State proposes to apply its rule; it is unrelated to the substantive legal issues presented by the litigation.
Second, the plurality finds it significant that the insurer does business in the forum State. The State does have a legitimate interest in regulating the practices of such an insurer. But this argument proves too much. The insurer here does business in all 50 States. The forum State has no interest in regulating that conduct of the insurer unrelated to property, persons, or contracts executed within the forum State. The plurality recognizes this flaw and attempts to bolster the significance of the local presence of the insurer by combining it with the other factors deemed significant: the presence of the plaintiff and the fact that the deceased worked in the forum State. This merely restates the basic question in the case.
Third, the plurality emphasizes particularly that the insured worked in the forum State.5 The fact that the insured was a nonresident employee in the forum State provides a significant contact for the furtherance of some local policies. The insured’s place of employment is not, however, significant in this case. Neither the nature of the insurance policy, the events related to the accident, nor the immediate question of stacking coverage are in any way affected or implicated by the insured’s employment status. The plurality’s opinion is understandably vague in explaining how trebling the benefits to be paid to the estate of a nonresident employee furthers any substantial state interest relating to employment. Minnesota does not wish its workers to die in automobile accidents, but permitting stacking will not further this interest. The substantive issue here is solely one of compensation, and whether the compensation provided by this policy is increased or not will have no relation to the State’s employment policies or police power.
Neither taken separately nor in the aggregate do the contacts asserted by the plurality today indicate that Minnesota’s application of its substantive rule in this case will further any legitimate state interest. The plurality focuses only on physical contacts vel non, and in doing so pays scant attention to the more fundamental reasons why our precedents require reasonable policy-related contacts in choice-of-law cases. Therefore, I dissent.
Questions and Comments
(1) How important is the fact that the decedent’s connection with the state of Minnesota was an employment connection? Would frequent visits to a relative—or to a bar—be enough? How does a court determine which contacts create interests? One possibility is to ask whether there is a substantive connection between the law in question (here, the stacking rule) and the contact (here, the Minnesota employment). See generally Brilmayer, Legitimate Interests in Multistate Problems: As Between State and Federal Law, 79 Mich. L. Rev. 1315 (1981); Martin, The Constitution and Legislative Jurisdiction, 10 Hofstra L. Rev. 133 (1981).
(2) May Hague at least be cited for the proposition that there is no longer any difference between due process and full faith and credit analysis of choice-of-law problems? Both the plurality and the dissenting opinions maintain that position.
(3) Both the plurality and the dissent in Hague concede that if the accident had taken place in Minnesota, Minnesota’s stacking rule would have been applicable without difficulty. The plurality uses that point to establish (since the place of the accident could just as easily have been Minnesota) that there was no unfair surprise. Why should the fact that an accident takes place in Minnesota allow Minnesota to apply its law to the relationship between the driver and his insurance company—a relationship entered into in Wisconsin and with virtually no Minnesota contacts? Although the Court allowed an in-state incident to affect an essentially out-of-state relationship in Clay v. Sun Insurance Office, Ltd. and Watson v. Employers Liability Assurance Corp., the issue in both those cases was far less devastating to the insurer: the amount of time given the insured to sue in Clay and the place of suit in Watson. Do those cases apply when the effect of imposing forum law is to triple liability?
(4) Under Justice Stevens’s rationale, isn’t it arguable that application of Wisconsin law would have been unconstitutional—first, on the grounds that it is different from the rule applicable in most states, and second on the grounds that it is substantively unfair? Notice that Justice Stevens’s criteria do not turn in any way on the nexus between the state whose law is applied and the involved parties or activities. The constitutionality of applying Wisconsin law, in other words, cannot be shown under his theory by identifying events or people located within Wisconsin. Even an entirely Wisconsin dispute, litigated in Wisconsin, could not be decided under Wisconsin law if that rule was a “dramatic departure” or seemed “substantively unfair.” Can this possibly be correct?
(5) In McCluney v. Jos. Schlitz Brewing Co., 649 F.2d 578 (8th Cir. 1981), the plaintiff had worked for the defendant brewing company in Missouri for many years. Eventually he was offered a promotion in the form of a transfer to North Carolina, and thereafter a promotion and transfer to corporate headquarters in Milwaukee, Wisconsin. In Milwaukee a dispute arose when the plaintiff insisted that his secretary also be transferred from North Carolina. His employment was terminated. He claimed that he had been fired; the company claimed that he had resigned. He demanded severance pay due one who has been fired, as well as a “service letter” required by Missouri statute. The company answered with a letter stating that he had resigned. He sued the company and in a trial court won (a) severance pay, (b) $1 in damages for violation of the service letter statute (for misstating the reasons for termination), and (c) $400,000 in punitive damages for violation of the Missouri service letter statute. The Court of Appeals reversed with respect to the second and third items, holding that, despite Hague, contacts were insufficient to allow Missouri to apply its own law to a contract of employment arising out of a promotion granted in North Carolina and implemented in Wisconsin. A dissent noted that it was not unreasonable to characterize the entire employment as arising out of a single contract, formed in Missouri, which though modified from time to time was still subject to the Missouri statute. It noted further that the contacts could be viewed as stronger than those in Hague: (1) not just employment in the forum (as in Hague) but employment by the defendant; (2) later domicile in Missouri by the defendant when he moved back to that state; and (3) substantial business transacted in Missouri by the defendant. (Ironically, the dissent argued that punitive damages were inappropriate, thereby reducing its dispute with the majority to item (b) above—actual damages of $1.)
The Supreme Court affirmed without opinion in McCluney, thus not explaining why the majority was right and the dissent was wrong, and not explaining in particular why the extensive contacts between the plaintiff’s early employment and the state of Missouri were inadequate to support legislative jurisdiction. 454 U.S. 1071 (1981). Can any sense be made of the Court’s disposition of McCluney? If the real rationale for affirmance was the fact that the dollar difference between the majority and dissent was only $1, would the better course have been to dismiss “for want of a substantial federal question”?
(6) Note the Court’s treatment of the plaintiff’s factual claim that she had not moved to Minnesota for purposes of changing the applicable law. How is the constitutionality of the application of forum law to be evaluated, if there is disagreement between the parties over whether the events in question actually occurred within the state?
In AT & T Mobility LLC v. AU Optronics Corp., 707 F.3d 1106 (9th Cir. 2013), cell phone companies sued manufacturers of liquid crystal display (LCD) panels under California’s antitrust laws, alleging that the defendants had engaged in a global conspiracy to fix LCD panel prices. Id. at 1108. Only one of the plaintiffs had its principal place of business in California, and none of the plaintiffs’ purchases at issue took place in California. Id. The district court had ruled that “only those plaintiffs who purchased products [the LCD panels] in California may allege claims under California law,” In re TFT-LCD (Flat Panel) Antitrust Litigation, 2010 WL 4705518 (N.D. Cal.). The Ninth Circuit reversed, citing the plaintiff’s allegations that the defendant had engaged in price fixing within the forum. “By comparison to [Allstate v. Hague], Plaintiffs claim that some portion of Defendant’s alleged illegal price-fixing conduct took place within California. Wherever the outer limit of due process constraints lie, it is clear to us that Defendant’s alleged illegal activity within California created more significant contacts with California than contacts described in Allstate created with Minnesota.” 707 F.3d at 1111.
Doesn’t the Ninth Circuit’s ruling allow plaintiffs to unfairly control the choice of law, simply by making allegations of contact with the forum? The proper standard of proof for such allegations, made at the outset of the case and before the trier of fact has evaluated the evidence, has been the subject of some dispute. Under the Supreme Court’s current standard, a plaintiff must have “enough facts to state a claim to relief that is plausible on its face” to survive a 12(b)(6) motion for dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). Does Allstate v. Hague meet this standard?
(7) How many significant contacts is “enough” to base a choice-of-law determination on? Allstate provides little guidance: “for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts,” 449 U.S. at 312-13. In AT & T Mobility, the Ninth Circuit criticized the district court for making “a single contact—the location of the Plaintiff’s injury—dispositive.” 707 F.3d at 1111-1112. But isn’t it characteristic of most choice-of-law theories to identify a single contact as uniquely relevant, and focus on that contact to the exclusion of other arguably relevant connecting factors? For an argument supporting the multifactor approach, see Brilmayer & Anglin, Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger, 95 Iowa L. Rev. 1125 (2010).
Phillips Petroleum Co. v. Shutts
472 U.S. 797 (1985)
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN and O’CONNOR, JJ., joined, and in Parts I and II of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part. POWELL, J., took no part in the decision of the case.
Justice REHNQUIST delivered the opinion of the Court.
Petitioner is a Delaware corporation which has its principal place of business in Oklahoma. During the 1970’s it produced or purchased natural gas from leased land located in 11 different States, and sold most of the gas in interstate commerce. Respondents are some 28,000 of the royalty owners possessing rights to the leases from which petitioner produced the gas; they reside in all 50 States, the District of Columbia, and several foreign countries. Respondents brought a class action against petitioner in the Kansas state court, seeking to recover interest on royalty payments which had been delayed by petitioner. They recovered judgment in the trial court, and the Supreme Court of Kansas affirmed the judgment over petitioner’s contentions that the Due Process Clause of the Fourteenth Amendment prevented Kansas from adjudicating the claims of all the respondents, and that the Due Process Clause and the Full Faith and Credit Clause of Article IV of the Constitution prohibited the application of Kansas law to all of the transactions between petitioner and respondents. We granted certiorari to consider these claims. 469 U.S. 879 (1984). We reject petitioner’s jurisdictional claim, but sustain its claim regarding the choice of law.
Because petitioner sold the gas to its customers in interstate commerce, it was required to secure approval for price increases from what was then the Federal Power Commission, and is now the Federal Energy Regulatory Commission. Under its regulations the Federal Power Commission permitted petitioner to propose and collect tentative higher gas prices, subject to final approval by the Commission. If the Commission eventually denied petitioner’s proposed price increase or reduced the proposed increase, petitioner would have to refund to its customers the difference between the approved price and the higher price charged, plus interest at a rate set by statute.
Although petitioner received higher gas prices pending review by the Commission, petitioner suspended any increase in royalties paid to the royalty owners because the higher price could be subject to recoupment by petitioner’s customers. Petitioner agreed to pay the higher royalty only if the royalty owners would provide petitioner with a bond or indemnity for the increase, plus interest, in case the price increase was not ultimately approved and a refund was due to the customers. Petitioner set the interest rate on the indemnity agreements at the same interest rate the Commission would have required petitioner to refund to its customers. A small percentage of the royalty owners provided this indemnity and received royalties immediately from the interim price increases; these royalty owners are unimportant to this case.
The remaining royalty owners received no royalty on the unapproved portion of the prices until the Federal Power Commission approval of those prices became final.…
Respondents Irl Shutts, Robert Anderson, and Betty Anderson filed suit against petitioner in Kansas state court, seeking interest payments on their suspended royalties which petitioner had possessed pending the Commission’s approval of the price increases. Shutts is a resident of Kansas, and the Andersons live in Oklahoma. Shutts and the Andersons own gas leases in Oklahoma and Texas. Over petitioner’s objection the Kansas trial court granted respondents’ motion to certify the suit as a class action under Kansas law. Kan. Stat. Ann. §60-223 et seq. (1983). The class as certified was comprised of 33,000 royalty owners who had royalties suspended by petitioner. The average claim of each royalty owner for interest on the suspended royalties was $100.
After the class was certified respondents provided each class member with notice through first-class mail. The notice described the action and informed each class member that he could appear in person or by counsel; otherwise each member would be represented by Shutts and the Andersons, the named plaintiffs. The notices also stated that class members would be included in the class and bound by the judgment unless they “opted out” of the lawsuit by executing and returning a “request for exclusion” that was included with the notice. The final class as certified contained 28,100 members; 3,400 had “opted out” of the class by returning the request for exclusion, and notice could not be delivered to another 1,500 members, who were also excluded. Less than 1,000 of the class members resided in Kansas. Only a minuscule amount, approximately one quarter of one percent, of the gas leases involved in the lawsuit were on Kansas land.
After petitioner’s mandamus petition to decertify the class was denied, the case was tried to the court. The court found petitioner liable under Kansas law for interest on the suspended royalties to all class members. The trial court relied heavily on an earlier, unrelated class action involving the same nominal plaintiff and the same defendant, Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527 (1977), cert. denied, 434 U.S. 1068 (1978). The Kansas Supreme Court had held in Shutts, Executor that a gas company owed interest to royalty owners for royalties suspended pending final Commission approval of a price increase. No federal statutes touched on the liability for suspended royalties, and the court in Shutts, Executor held as a matter of Kansas equity law that the applicable interest rates for computation of interest on suspended royalties were the interest rates at which the gas company would have had to reimburse its customers had its interim price increase been rejected by the Commission. The court in Shutts, Executor viewed these as the fairest interest rates because they were also the rates that petitioner required the royalty owners to meet in their indemnity agreements in order to avoid suspended royalties.
The trial court in the present case applied the rule from Shutts, Executor, and held petitioner liable for prejudgment and postjudgment interest on the suspended royalties, computed at the Commission rates governing petitioner’s three price increases.…
Petitioner raised two principal claims in its appeal to the Supreme Court of Kansas. It first asserted that the Kansas trial court did not possess personal jurisdiction over absent plaintiff class members as required by International Shoe Co. v. Washington, 326 U.S. 310 (1945), and similar cases. Related to this first claim was petitioner’s contention that the “opt-out” notice to absent class members, which forced them to return the request for exclusion in order to avoid the suit, was insufficient to bind class members who were not residents of Kansas or who did not possess “minimum contacts” with Kansas. Second, petitioner claimed that Kansas courts could not apply Kansas law to every claim in the dispute. The trial court should have looked to the laws of each State where the leases were located to determine, on the basis of conflict of laws principles, whether interest on the suspended royalties was recoverable, and at what rate.
The Supreme Court of Kansas held that the entire cause of action was maintainable under the Kansas class-action statute, and the court rejected both of petitioner’s claims. First, it held that the absent class members were plaintiffs, not defendants, and thus the traditional minimum contacts test of International Shoe did not apply. The court held that nonresident class-action plaintiffs were only entitled to adequate notice, an opportunity to be heard, an opportunity to opt out of the case, and adequate representation by the named plaintiffs. If these procedural due process minima were met, according to the court, Kansas could assert jurisdiction over the plaintiff class and bind each class member with a judgment on his claim. The court surveyed the course of the litigation and concluded that all of these minima had been met.
The court also rejected petitioner’s contention that Kansas law could not be applied to plaintiffs and royalty arrangements having no connection with Kansas. The court stated that generally the law of the forum controlled all claims unless “compelling reasons” existed to apply a different law. The court found no compelling reasons, and noted that “[t]he plaintiff class members have indicated their desire to have this action determined under the laws of Kansas.” …
[The Court’s opinion as to personal jurisdiction can be found at page 405 infra.]
The Kansas courts applied Kansas contract and Kansas equity law to every claim in this case, notwithstanding that over 99 percent of the gas leases and some 97 percent of the plaintiffs in the case had no apparent connection to the State of Kansas except for this lawsuit. Petitioner protested that the Kansas courts should apply the laws of the States where the leases were located, or at least apply Texas and Oklahoma law because so many of the leases came from those States. The Kansas courts disregarded this contention and found petitioner liable for interest on the suspended royalties as a matter of Kansas law, and set the interest rates under Kansas equity principles.
Petitioner contends that total application of Kansas substantive law violated the constitutional limitations on choice of law mandated by the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Article IV, §1. We must first determine whether Kansas law conflicts in any material way with any other law which could apply.
[The Court next discussed the difference between Kansas law and the law of other states on the issue of interest rates.]
The conflicts on the applicable interest rates, alone—which we do not think can be labeled “false conflicts” without a more thoroughgoing treatment than was accorded them by the Supreme Court of Kansas—certainly amounted to millions of dollars in liability. We think that the Supreme Court of Kansas erred in deciding on the basis that it did that the application of its laws to all claims would be constitutional.
Four Terms ago we addressed a similar situation in Allstate Ins. Co. v. Hague, supra page 311.
The plurality in Allstate noted that a particular set of facts giving rise to litigation could justify, constitutionally, the application of more than one jurisdiction’s laws. The plurality recognized, however, that the Due Process Clause and the Full Faith and Credit Clause provided modest restrictions on the application of forum law. These restrictions required “that for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Id. The dissenting Justices were in substantial agreement with this principle (opinion of Powell, J., joined by Burger, C.J., and Rehnquist, J.).
Petitioner owns property and conducts substantial business in the State, so Kansas certainly has an interest in regulating petitioner’s conduct in Kansas. Moreover, oil and gas extraction is an important business to Kansas, and although only a few leases in issue are located in Kansas, hundreds of Kansas plaintiffs were affected by petitioner’s suspension of royalties; thus the court held that the State has a real interest in protecting “the rights of these royalty owners both as individual residents of [Kansas] and as members of this particular class of plaintiffs.” The Kansas Supreme Court pointed out that Kansas courts are quite familiar with this type of lawsuit, and “[t]he plaintiff class members have indicated their desire to have this action determined under the laws of Kansas.” Finally, the Kansas court buttressed its use of Kansas law by stating that this lawsuit was analogous to a suit against a “common fund” located in Kansas.
We do not lightly discount this description of Kansas’ contacts with this litigation and its interest in applying its law. There is, however, no “common fund” located in Kansas that would require or support the application of only Kansas law to all these claims. As the Kansas court noted, petitioner commingled the suspended royalties with its general corporate accounts. There is no specific identifiable res in Kansas, nor is there any limited amount which may be depleted before every plaintiff is compensated. Only by somehow aggregating all the separate claims in this case could a “common fund” in any sense be created, and the term becomes all but meaningless when used in such an expansive sense.
We also give little credence to the idea that Kansas law should apply to all claims because the plaintiffs, by failing to opt out, evinced their desire to be bound by Kansas law. Even if one could say that the plaintiffs “consented” to the application of Kansas law by not opting out, plaintiff’s desire for forum law is rarely, if ever controlling. In most cases the plaintiff shows his obvious wish for forum law by filing there. “If a plaintiff could choose the substantive rules to be applied to an action … the invitation to forum shopping would be irresistible.” Allstate, supra, at 337 (opinion of Powell, J.). Even if a plaintiff evidences his desire for forum law by moving to the forum, we have generally accorded such a move little or no significance. John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 182 (1936); Home Ins. Co. v. Dick, 281 U.S. 397, 408 (1930). In Allstate the plaintiff’s move to the forum was only relevant because it was unrelated and prior to the litigation. Thus the plaintiffs’ desire for Kansas law, manifested by their participation in this Kansas lawsuit, bears little relevance.
The Supreme Court of Kansas in its opinion in this case expressed the view that by reason of the fact that it was adjudicating a nationwide class action, it had much greater latitude in applying its own law to the transactions in question than might otherwise be the case:
“The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred.… Where a state court determines it has jurisdiction over a nationwide class action and procedural due process guarantees of notice and adequate representation are present, we believe the law of the forum should be applied unless compelling reasons exist for applying a different law.… Compelling reasons do not exist to require this court to look to other state laws to determine the rights of the parties involved in this lawsuit.” 235 Kan., at 221-222.
We think that this is something of a “bootstrap” argument. The Kansas class-action statute, like those of most other jurisdictions, requires that there be “common issues of law or fact.” But while a State may, for the reasons we have previously stated, assume jurisdiction over the claims of plaintiffs whose principal contacts are with other States, it may not use this assumption of jurisdiction as an added weight in the scale when considering the permissible constitutional limits on choice of substantive law. It may not take a transaction with little or no relationship to the forum and apply the law of the forum in order to satisfy the procedural requirement that there be a “common question of law.” The issue of personal jurisdiction over plaintiffs in a class action is entirely distinct from the question of the constitutional limitations on choice of law; the latter calculus is not altered by the fact that it may be more difficult or more burdensome to comply with the constitutional limitations because of the large number of transactions which the State proposes to adjudicate and which have little connection with the forum.
Kansas must have a “significant contact or significant aggregation of contacts” to the claims asserted by each member of the plaintiff class, contacts “creating state interests,” in order to ensure that the choice of Kansas law is not arbitrary or unfair. Allstate, supra, at 312-313. Given Kansas’ lack of “interest” in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude that application of Kansas law to every claim in this case is sufficiently arbitrary and unfair as to exceed constitutional limits.
When considering fairness in this context, an important element is the expectation of the parties. See id. at 333 (opinion of Powell, J.). There is no indication that when the leases involving land and royalty owners outside of Kansas were executed, the parties had any idea that Kansas law would control. Neither the Due Process Clause nor the Full Faith and Credit Clause requires Kansas “to substitute for its own [laws], applicable to persons and events within it, the conflicting statute of another state,” Pacific Employees Ins. Co. v. Industrial Accident Commn., 306 U.S. 493, 502 (1939), but Kansas “may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them.” Home Ins. Co. v. Dick, supra, at 410.
Here the Supreme Court of Kansas took the view that in a nationwide class action where procedural due process guarantees of notice and adequate representation were met, “the law of the forum should be applied unless compelling reasons exist for applying a different law.” Whatever practical reasons may have commended this rule to the Supreme Court of Kansas, for the reasons already stated we do not believe that it is consistent with the decisions of this Court. We make no effort to determine for ourselves which law must apply to the various transactions involved in this lawsuit, and we re-affirm our observation in Allstate that in many situations a state court may be free to apply one of several choices of law. But the constitutional limitations laid down in cases such as Allstate and Home Ins. Co. v. Dick must be respected even in a nationwide class action.…
Justice POWELL took no part in the decision of this case.
Justice STEVENS, concurring in part and dissenting in part.…
As the Court recognizes, there “can be no [constitutional] injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit.” A fair reading of the Kansas Supreme Court’s opinion in light of its earlier opinion in Shutts v. Phillips Petroleum Co. (hereinafter Shutts I), reveals that the Kansas court has examined the laws of connected jurisdictions and has correctly concluded that there is no “direct” or “substantive” conflict between the law applied by Kansas and the laws of those other States. Kansas has merely developed general common-law principles to accommodate the novel facts of this litigation—other state courts either agree with Kansas or have not yet addressed precisely similar claims. Consequently, I conclude that the Full Faith and Credit Clause of the Constitution did not require Kansas to apply the law of any other State, and the Fourteenth Amendment’s Due Process Clause did not prevent Kansas from applying its own law in this case.
Questions and Comments
(1) The Court noted Phillips owned property and conducted substantial business in Kansas and concluded that therefore Kansas had an interest in regulating its conduct in Kansas. Why only in Kansas? Recall that in Allstate v. Hague, the plurality relied upon Allstate’s unrelated business in the forum to justify imposition of forum law to a claim arising outside the forum. Why not do the same here?
(2) Does Shutts say anything new about the standard for applying forum law, or does it merely say that the forum may not automatically apply its own law? What guidance has been given to the court below on remand?
(3) Whose expectations is the Court referring to? If it is the defendant’s, wasn’t this answered in Allstate v. Hague, where the Court said that doing unrelated business in the forum should have made Allstate Insurance familiar with forum law and able to anticipate its application? The plaintiffs, on the other hand, are unlikely to complain about unfair surprise if Kansas law is applied; they actually prefer Kansas law. Moreover, are they any more likely to be surprised than Lavinia Hague was in Allstate?
(4) Even as to those plaintiffs that might claim the benefits of Kansas law—those with a Kansas oil lease, say—it is nevertheless conceivable that some other law would be more advantageous still. Assume, for instance, that Smith owns an oil lease executed at her home in Alaska and Alaskan law is even more generous to her. If Alaska would apply its law to her, and could do so constitutionally, then it is not to her advantage to be a member of the Kansas class. Doesn’t it pose formidable problems of adequacy of representation, however, to bring an absent plaintiff into a class action that is against her interest? But how can a court determine where each particular plaintiff could get the best deal, without knowing plaintiff’s contacts with all 50 states and performing detailed alternative choice-of-law analyses? Should a court merely notify potential class members of this possibility and suggest that each contact a lawyer? Choice of law in class actions is explored further in Chapter 10.
(5) We still seem to know very little about what contacts would constitutionally justify application of forum law under the modern learning. Some academic writers continue to claim that the Court has adopted governmental interest analysis. Shreve, Interest Analysis as Constitutional Law, 48 Ohio St. L.J. 51 (1987). Does Shutts support this?
Sun Oil Co. v. Wortman
486 U.S. 717 (1988)
Justice SCALIA delivered the opinion of the Court. [This case is related to Shutts, supra, and the facts are similar. Respondents, owners of property in Texas, Oklahoma, and Louisiana, sued Sun Oil Company, a Delaware company with its principal place of business in Texas, in Kansas state court to recover interest on previously suspended gas royalties. The action was barred by the statute of limitations in Texas, Oklahoma, and Louisiana, but it fell within Kansas’s longer five-year statute of limitations. The Kansas courts applied the Kansas statute of limitations and rejected arguments that doing so violated the full faith and credit and due process clauses. The Kansas courts also rejected the claim that it had so misconstrued the substantive laws of Texas, Oklahoma, and Louisiana as to violate the full faith and credit and due process clauses.]
This Court has long and repeatedly held that the Constitution does not bar application of the forum State’s statute of limitations to claims that in their substance are and must be governed by the law of a different State. We granted certiorari to reexamine this issue. We conclude that our prior holdings are sound.
The Full Faith and Credit Clause provides:
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.
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.” Pacific Employers Ins. Co. v. Industrial Accident Commn., 306 U.S. 493, 501 (1939). Since the procedural rules of its courts are surely matters on which a State is competent to legislate, it follows that a State may apply its own procedural rules to actions litigated in its courts. The issue here, then, can be characterized as whether a statute of limitations may be considered as a procedural matter for purposes of the Full Faith and Credit Clause.
Petitioner initially argues that M’Elmoyle v. Cohen, supra, was wrongly decided when handed down. The holding of M’Elmoyle, that a statute of limitations may be treated as procedural and thus may be governed by forum law even when the substance of the claim must be governed by another State’s law, rested on two premises, one express and one implicit. The express premise was that this reflected the rule in international law at the time the Constitution was adopted. This is indisputably correct, and is not challenged by petitioner. The implicit premise, which petitioner does challenge, was that this rule from international law could properly have been applied in the interstate context consistently with the Full Faith and Credit Clause.
The first sentence of the Full Faith and Credit Clause was not much discussed at either the Constitutional Convention or the state ratifying conventions. However, the most pertinent comment at the Constitutional Convention, made by James Wilson of Pennsylvania, displays an expectation that it would be interpreted against the background of principles developed in international conflicts law. See 2 M. Farrand, The Records of the Federal Convention of 1787, p.488 (rev. ed. 1966). Moreover, this expectation was practically inevitable, since there was no other developed body of conflicts law to which courts in our new Union could turn for guidance.
The reported state cases in the decades immediately following ratification of the Constitution show that courts looked without hesitation to international law for guidance in resolving the issue underlying this case: which State’s law governs the statute of limitations. The state of international law on that subject being as we have described, these early decisions uniformly concluded that the forum’s statute of limitations governed even when it was longer than the limitations period of the State whose substantive law governed the merits of the claim.… By 1820, the use of the forum statute of limitations in the interstate context was acknowledged to be “well settled.” … Obviously, judges writing in the era when the Constitution was framed and ratified thought the use of the forum statute of limitations to be proper in the interstate context. Their implicit understanding that the Full Faith and Credit Clause did not preclude reliance on the international law rule carries great weight.
Moreover, this view of statutes of limitation as procedural for purposes of choice of law followed quite logically from the manner in which they were treated for domestic-law purposes. At the time the Constitution was adopted the rule was already well established that suit would lie upon a promise to repay a debt barred by the statute of limitations—on the theory, as expressed by many courts, that the debt constitutes consideration for the promise, since the bar of the statute does not extinguish the underlying right but merely causes the remedy to be withheld.… This is the same theory, of course, underlying the conflicts rule: the right subsists, and the forum may choose to allow its courts to provide a remedy, even though the jurisdiction where the right arose would not.
Unable to sustain the contention that under the original understanding of the Full Faith and Credit Clause statutes of limitations would have been considered substantive, petitioner argues that we should apply the modern understanding that they are so. It is now agreed, petitioner argues, that the primary function of a statute of limitations is to balance the competing substantive values of repose and vindication of the underlying right; and we should apply that understanding here, as we have applied it in the area of choice of law for purposes of federal diversity jurisdiction, where we have held that statutes of limitation are substantive, see Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
To address the last point first: Guaranty Trust itself rejects the notion that there is an equivalence between what is substantive under the Erie doctrine and what is substantive for purposes of conflict of laws. Id., at 108. Except at the extremes, the terms “substance” and “procedure” precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn. In the context of our Erie jurisprudence, see Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), that purpose is to establish (within the limits of applicable federal law, including the prescribed Rules of Federal Procedure) substantial uniformity of predictable outcome between cases tried in a federal court and cases tried in the courts of the State in which the federal court sits. See Guaranty Trust, supra, at 109; Hanna v. Plumer, 380 U.S. 460, 467, 471-474 (1965). The purpose of the substance-procedure dichotomy in the context of the Full Faith and Credit Clause, by contrast, is not to establish uniformity but to delimit spheres of state legislative competence. How different the two purposes (and hence the appropriate meanings) are is suggested by this: It is never the case under Erie that either federal or state law—if the two differ—can properly be applied to a particular issue, cf. Erie, supra, at 72-73; but since the legislative jurisdictions of the States overlap, it is frequently the case under the Full Faith and Credit Clause that a court can lawfully apply either the law of one State or the contrary law of another, see Shutts III, 472 U.S., at 823 (“in many situations a state court may be free to apply one of several choices of law”). Today, for example, we do not hold that Kansas must apply its own statute of limitations to a claim governed in its substance by another State’s law, but only that it may.
But to address petitioner’s broader point of which the Erie argument is only a part—that we should update our notion of what is sufficiently “substantive” to require full faith and credit: We cannot imagine what would be the basis for such an updating. As we have just observed, the words “substantive” and “procedural” themselves (besides not appearing in the Full Faith and Credit Clause) do not have a precise content, even (indeed especially) as their usage has evolved. And if one consults the purpose of their usage in the full-faith-and-credit context, that purpose is quite simply to give both the forum State and other interested States the legislative jurisdiction to which they are entitled. If we abandon the currently applied, traditional notions of such entitlement we would embark upon the enterprise of constitutionalizing choice-of-law rules, with no compass to guide us beyond our own perceptions of what seems desirable.2 There is no more reason to consider recharacterizing statutes of limitations as substantive under the Full Faith and Credit Clause than there is to consider recharacterizing a host of other matters generally treated as procedural under conflicts law, and hence generally regarded as within the forum State’s legislative jurisdiction. See, e.g., Restatement (Second) of Conflict of Laws §131 (remedies available), §133 (placement of burden of proof), §134 (burden of production), §135 (sufficiency of the evidence), §139 (privileges) (1971).
In sum, long established and still subsisting choice-of-law practices that come to be thought, by modern scholars, unwise, do not thereby become unconstitutional. If current conditions render it desirable that forum States no longer treat a particular issue as procedural for conflict of laws purposes, those States can themselves adopt a rule to that effect, or it can be proposed that Congress legislate to that effect under the second sentence of the Full Faith and Credit Clause. It is not the function of this Court, however, to make departures from established choice-of-law precedent and practice constitutionally mandatory. We hold, therefore, that Kansas did not violate the Full Faith and Credit Clause when it applied its own statute of limitations.
Petitioner also makes a due process attack upon the Kansas court’s application of its own statute of limitations.3 Here again neither the tradition in place when the constitutional provision was adopted nor subsequent practice supports the contention. At the time the Fourteenth Amendment was adopted, this Court had not only explicitly approved (under the Full Faith and Credit Clause) forum-state application of its own statute of limitations, but the practice had gone essentially unchallenged. And it has gone essentially unchallenged since. “If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.” Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).
A State’s interest in regulating the work load of its courts and determining when a claim is too stale to be adjudicated certainly suffices to give it legislative jurisdiction to control the remedies available in its courts by imposing statutes of limitations. Moreover, petitioner could in no way have been unfairly surprised by the application to it of a rule that is as old as the Republic. There is, in short, nothing in Kansas’ action here that is “arbitrary or unfair,” Shutts III, 472 U.S., at 821-822, and the due process challenge is entirely without substance.
In Shutts III, we held that Kansas could not apply its own law to claims for interest by nonresidents concerning royalties from property located in other States. The Kansas Supreme Court has complied with that ruling, but petitioner claims that it has unconstitutionally distorted Texas, Oklahoma, and Louisiana law in its determination of that law made in Shutts IV and applied to this case in Wortman III.
To constitute a violation of the Full Faith and Credit Clause or the Due Process Clause, it is not enough that a state court misconstrue the law of another State. Rather, our cases make plain that the misconstruction must contradict law of the other State that is clearly established and that has been brought to the court’s attention.… We cannot conclude that any of the interpretations at issue here runs afoul of this standard.
[The Court then discussed the substantive laws of Texas, Oklahoma, and Louisiana.] For the reasons stated, the judgment of the Kansas Supreme Court is affirmed.
Justice KENNEDY took no part in the consideration or decision of this case.
Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, concurring in part and concurring in the judgment.
I join Parts I and III of the Court’s opinion. Although I also agree with the result the Court reaches in Part II, I reach that result through a somewhat different path of analysis.
For 150 years, this Court has consistently held that a forum State may apply its own statute of limitations period to out-of-state claims even though it is longer or shorter than the limitations period that would be applied by the State out of which the claim arose. The main question presented in this case is whether this line of authority has been undermined by more recent case law concerning the constitutionality of state choice-of-law rules. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). I conclude that it has not.
… The minimum requirements imposed by the Full Faith and Credit Clause2 are that a forum State should not apply its law unless it has “a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair,” Phillips Petroleum, supra, at 818, quoting Allstate, supra, at 312-313 (plurality opinion of Brennan, J., joined by White, Marshall, and Blackmun, JJ.). The constitutional issue in this case is somewhat more complicated than usual because the question is not the typical one of whether a State can constitutionally apply its substantive law where both it and another State have certain contacts with the litigants and the facts underlying the dispute. Rather the question here is whether a forum State can constitutionally apply its limitations period, which has mixed substantive and procedural aspects, where its contacts with the dispute stem only from its status as the forum.
Were statutes of limitations purely substantive, the issue would be an easy one, for where, as here, a forum State has no contacts with the underlying dispute, it has no substantive interests and cannot apply its own law on a purely substantive matter. Nor would the issue be difficult if statutes of limitations were purely procedural, for the contacts a State has with a dispute by virtue of being the forum always create state procedural interests that make applications of the forum’s law on purely procedural questions “neither arbitrary nor fundamentally unfair.” Phillips Petroleum, 472 U.S., at 818. Statutes of limitations, however, defy characterization as either purely procedural or purely substantive. The statute of limitations a State enacts represents a balance between, on the one hand, its substantive interest in vindicating substantive claims and, on the other hand, a combination of its procedural interest in freeing its courts from adjudicating stale claims and its substantive interest in giving individuals repose from ancient breaches of law. A State that has enacted a particular limitations period has simply determined that after that period the interest in vindicating claims becomes outweighed by the combination of the interests in repose and avoiding stale claims. One cannot neatly categorize this complicated temporal balance as either procedural or substantive.
Given the complex of interests underlying statutes of limitations, I conclude that the contact a State has with a claim simply by virtue of being the forum creates a sufficient procedural interest to make the application of its limitations period to wholly out-of-state claims consistent with the Full Faith and Credit Clause. This is clearest when the forum State’s limitations period is shorter than that of the claim State. A forum State’s procedural interest in avoiding the adjudication of stale claims is equally applicable to in-state and out-of-state claims. That the State out of which the claim arose may have concluded that at that shorter period its substantive interests outweigh its procedural interest in avoiding stale claims would not make any difference; it would be “neither arbitrary nor fundamentally unfair,” Phillips Petroleum, supra, at 818, for the forum State to conclude that its procedural interest is more weighty than that of the claim State and requires an earlier time bar, as long as the time bar applied in a nondiscriminatory manner to in-state and out-of-state claims alike.
The constitutional question is somewhat less clear where, as here, the forum State’s limitations period is longer than that of the claim State. In this situation, the claim State’s statute of limitations reflects its policy judgment that at the time the suit was filed the combination of the claim State’s procedural interest in avoiding stale claims and its substantive interest in repose outweighs its substantive interest in vindicating the plaintiff’s substantive rights. Assuming, for the moment, that each State has an equal substantive interest in the repose of defendants, then a forum State that has concluded that its procedural interest is less weighty than that of the claim State does not act unfairly or arbitrarily in applying its longer limitations period. The claim State does not, after all, have any substantive interest in not vindicating rights it has created. Nor will it do to argue that the forum State has no interest in vindicating the substantive rights of nonresidents: the forum State cannot discriminate against nonresidents, and if it has concluded that the substantive rights of its citizens outweigh its procedural interests at that period then it cannot be faulted for applying that determination evenhandedly.
If the different limitations periods also reflect differing assessments of the substantive interests in the repose of defendants, however, the issue is more complicated. It is, to begin with, not entirely clear whether the interest in the repose of defendants is an interest the State has as a forum or wholly as the creator of the claim at issue. Even if one assumes the latter, determining whether application of the forum State’s longer limitations period would thwart the claim State’s substantive interest in repose requires a complex assessment of the relative weights of both States’ procedural and substantive interests. For example, a claim State may have a substantive interest in vindicating claims that, at a particular period, outweighs its substantive interest in repose standing alone but not the combination of its interests in repose and avoiding the adjudication of stale claims. Such a State would not have its substantive interest in repose thwarted by the claim’s adjudication in a State that professed no procedural interest in avoiding stale claims, even if the forum State had less substantive interest in repose than the claim State, because the forum State would be according the claim State’s substantive interests all the weight the claim State gives them. Such efforts to break down and weigh the procedural and substantive components and interests served by the various States’ limitations period would, however, involve a difficult, unwieldy and somewhat artificial inquiry that itself implicates the strong procedural interest any forum State has in having administrable choice-of-law rules.
In light of the forum State’s procedural interests and the inherent ambiguity of any more refined inquiry in this context, there is some force to the conclusion that the forum State’s contacts give it sufficient procedural interests to make it “neither arbitrary nor fundamentally unfair,” Phillips Petroleum, 472 U.S., at 818, for the State to have a per se rule of applying its own limitations period to out-of-state claims—particularly where, as here, the states out of which the claims arise view their statutes of limitations as procedural. The issue, after all, is not whether the decision to apply forum limitations law is wise as a matter of choice-of-law doctrine but whether the decision is within the range of constitutionally permissible choices, and we have already held that distinctions similar to those offered above “are too unsubstantial to form the basis for constitutional distinctions.” This conclusion may not be compelled, but the arguments to the contrary are at best arguable, and any merely arguable inconsistency with our current full faith and credit jurisprudence surely does not merit deviating from 150 years of precedent holding that choosing the forum State’s limitations period over that of the claim State is constitutionally permissible.
The Court’s technique of avoiding close examination of the relevant interests by wrapping itself in the mantle of tradition is as troublesome as it is conclusory. It leads the Court to assert broadly (albeit in dicta) that States do not violate the Full Faith and Credit Clause by adjudicating out-of-state claims under the forum’s own law on, inter alia, remedies, burdens of proof, and burdens of production. The constitutionality of refusing to apply the law of the claim State on such issues was not briefed or argued before this Court, and whether, as the Court asserts without support, there are insufficient reasons for “recharacterizing” these issues (at least in part) as substantive is a question that itself presents multiple issues of enormous difficulty and importance which deserve more than the offhand treatment the Court gives them.
Even more troublesome is the Court’s sweeping dicta that any choice-of-law practice that is “long established and still subsisting” is constitutional. This statement on its face seems to encompass choice-of-law doctrines on purely substantive issues, and the blind reliance on tradition confuses and conflicts with the full faith and credit test we articulated just three years ago in Phillips Petroleum. See also Allstate, 449 U.S., at 308-309, n.11 (plurality opinion of Brennan, J., joined by White, Marshall, and Blackmun, JJ.) (stating that a 1934 case giving “controlling constitutional significance” to a traditional choice-of-law test “has scant relevance for today”). That certain choice-of-law practices have so far avoided constitutional scrutiny by this Court is in any event a poor reason for concluding their constitutional validity. Nor is it persuasive that the practice reflected the rule applied by States or in international law around the time of the adoption of the Constitution, since “[t]he very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties,” Milwaukee County v. M. E. White Co., 296 U.S. 268, 276-277 (1935), not to leave matters unchanged. The Court never offers a satisfactory explanation as to why tradition should enable States to engage in practices that, under our current test, are “arbitrary” or “fundamentally unfair.” The broad range of choice-of-law practices that may, in one jurisdiction or another, be traditional are not before this Court and have not been surveyed by it, and we can only guess what practices today’s opinion approves sight unseen. Nor am I much comforted by the fact that the Court opines on the constitutionality of traditional choice-of-law practices only to the extent they are “still subsisting,” for few cases involve challenges to practices that no longer subsist. One wonders as well how future courts will determine which practices are traditional enough (or subsist strongly enough) to be constitutional, and about the utility of requiring courts to focus on such an uncertain and formalistic inquiry rather than on the fairness and arbitrariness of the choice-of-law rule at issue. Indeed, the disarray of the Court’s test is amply demonstrated by the fact that two of the Justices necessary to form the Court leave open the issue of whether a forum State could constitutionally refuse to apply a shorter limitations period regarded as substantive by the foreign State, see post (O’Connor, J., joined by Rehnquist, C.J., concurring in part and dissenting in part), even though in many States the subsisting tradition of applying the forum’s limitations period recognizes no exception for limitations periods considered substantive by the foreign State. See generally Restatement (Second) of Conflict of Laws §143 and Reporter’s Note (1971) (collecting cases).
In short, I fear the Court’s rationale will cause considerable mischief with no corresponding benefit.
The Court properly concludes that Kansas did not violate the Full Faith and Credit Clause or the Due Process Clause when it chose to apply its own statute of limitations in this case. Different issues might have arisen if Texas, Oklahoma, or Louisiana regarded its own shorter statute of limitations as substantive. Such issues, however, are not presented in this case, and they are appropriately left unresolved. Accordingly, I join Parts I and II of the Court’s opinion.
In my view, however, the Supreme Court of Kansas violated the Full Faith and Credit Clause when it concluded that the three States in question would apply the interest rates set forth in the regulations of the Federal Power Commission (FPC). The Court correctly states that misconstruing those States’ laws would not by itself have violated the Constitution, for the Full Faith and Credit Clause only required the Kansas court to adhere to law that was clearly established in those States and that had been brought to the Kansas court’s attention. Under the standard the Court articulates, however, the Clause was violated. Each of the three States has a statute setting an interest rate that is different from the FPC rate, and the Supreme Court of Kansas offered no valid reason whatsoever for ignoring those statutory rates. Neither has this Court suggested a colorable argument that could support the Kansas court’s decision, and its affirmance of that decision effectively converts an important constitutional guarantee into a precatory admonition.
[The opinion then discussed its view of Texas, Oklahoma, and Louisiana law.]
Today’s decision discards important parts of our decision in Shutts III, 472 U.S. 797 (1985), and of the Full Faith and Credit Clause. Faced with the constitutional obligation to apply the substantive law of another State, a court that does not like that law apparently need take only two steps in order to avoid applying it. First, invent a legal theory so novel or strange that the other State has never had an opportunity to reject it; then, on the basis of nothing but unsupported speculation, “predict” that the other State would adopt that theory if it had the chance. To call this giving full faith and credit to the law of another State ignores the language of the Constitution and leaves it without the capacity to fulfill its purpose. Rather than take such a step, I would remand this case to the Supreme Court of Kansas with instructions to give effect to the interest rates established by law in Texas, Oklahoma, and Louisiana. I therefore respectfully dissent.
Questions and Comments
(1) Wortman must surely make one thing even clearer: that with regard to the issue of whether an adequate nexus exists for application of local law, the due process and full faith and credit limits are identical. Justice Scalia recognized this fact in footnote 3; and the concurring opinion of Justice Brennan agreed in its footnote 2. All members of the court who participated thus accepted the choice-of-law equivalence of the two clauses. While this result is in accord with earlier decisions, why (if they are identical) is the focus here primarily upon the interpretation of full faith and credit while earlier cases spoke in terms of due process?
What accounts for this interesting coincidence that these two rather different-sounding clauses just happen to turn out to have the identical scope in this context? Given his apparent interest in historical interpretation of constitutional provisions, why would Justice Scalia equate clauses from two different historical periods? Note that the argument that Kansas had denied other states’ law full faith and credit through misinterpretation is discussed only in terms of full faith and credit and not also in due process terms. Why is this only a problem of the former, and not the latter? In the section of this chapter that follows, we will see additional problems that are amenable only to full faith and credit, and not to due process, analysis.
(2) By relying so extensively upon the understanding at the time that the Constitution was drafted, does Justice Scalia’s opinion effectively give constitutional carte blanche to all First Restatement principles, or at least to all First Restatement rules adequately grounded in tradition? Has the Wortman majority constitutionalized the substance/procedure distinction? Did it, in footnote 3, constitutionalize renvoi? Has it constitutionalized international law, at least as it stood 200 years ago?
(3) Is Justice Brennan’s decidedly non-originalist approach any better? His concurrence draws heavily on the distinction between substantive and procedural interests. Is the substance/procedure distinction any more helpful here than it was in Chapters 2 and 3? What precisely is the forum state’s procedural interest in providing a longer statute of limitations than the claim state?
(4) Is Justice O’Connor’s concern about opportunistic misinterpretation of foreign law a genuine one? Wouldn’t it be worse for the Supreme Court to get into the business of closely scrutinizing the accuracy of state court interpretations of foreign law?
(5) Much speculation arose just prior to the 1992 presidential elections about the likely choice-of-law implications of a possible overruling of Roe v. Wade, 410 U.S. 113 (1973). If some states were allowed to criminalize abortions, would they also be permitted to penalize local individuals traveling to obtain abortions in other states, where the abortions were legal? Recall Skiriotes v. Florida, 313 U.S. 69 (1941), page 302 supra, recognizing a state’s right to regulate its citizens’ conduct outside the state in at least certain circumstances. The topic was the subject of a symposium in 91 Mich. L. Rev. (1992); Professors Kreimer and Brilmayer both concluded, although for different reasons, that extraterritorial prohibitions on abortion would be largely impermissible. See Kreimer, “But Whosoever Treasures Freedom … ”: The Right to Travel and Extraterritorial Abortions, 91 Mich. L. Rev. 907 (1992); Brilmayer, Interstate Preemption: The Right to Travel, the Right to Life, and the Right to Die, 91 Mich. L. Rev. 873 (1992). See also Kreimer, The Law of Choice and Choice of Law: Abortion, the Right to Travel, and Extraterritorial Regulation in American Federalism, 67 N.Y.U. L. Rev. 451 (1992). Brilmayer argued that abortion is different from many other substantive areas, because the decision not to regulate abortion is typically a decision to afford women the affirmative freedom to make up their own minds, rather than a simple failure to regulate on the topic. Compare Bradford, What Happens if Roe Is Overruled? Extraterritorial Regulation of Abortion by the States, 35 Ariz. L. Rev. 87 (1993) and Van Alstyne, Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of Decision Merely Overruling Roe, 1989 Duke L.J. 1677 (both concluding that extraterritorial regulation would be permissible).
Because the full faith and credit clause has come to require nothing more than the due process clause in the traditional choice-of-law context, its distinctive relevance to conflict of laws must be found elsewhere. One area of application is the interstate enforcement of judgments, a topic that will be addressed in Chapter 7. But there are nonjudgments contexts in which the clause has also been invoked and has provided the basis for invalidating state actions. The following cases address situations in which it is argued that the forum is according too little respect to the laws of another state. They deal with door-closing and localizing statutes pursuant to which either the forum declines to hear a foreign claim or refuses to respect the foreign state’s wishes that its claim not be entertained in the forum. Why are such cases primarily a matter of full faith and credit, while choice-of-law cases can be treated equally well under either a due process or a full faith and credit analysis? See generally Brilmayer, Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95 (1984).
Hughes v. Fetter
341 U.S. 609 (1951)
Justice BLACK delivered the opinion of the Court.
Basing his complaint on the Illinois wrongful death statute, appellant administrator brought this action in the Wisconsin state court to recover damages for the death of Harold Hughes, who was fatally injured in an automobile accident in Illinois. The allegedly negligent driver and an insurance company were named as defendants. On their motion the trial court entered summary judgment “dismissing the complaint on the merits.” It held that a Wisconsin statute, which creates a right of action only for deaths caused in that state, establishes a local public policy against Wisconsin’s entertaining suits brought under the wrongful death acts of other states. The Wisconsin Supreme Court affirmed, notwithstanding the contention that the local statute so construed violated the Full Faith and Credit Clause of Art. IV, §1 of the Constitution.…
We are called upon to decide the narrow question whether Wisconsin, over the objection raised, can close the doors of its courts to the cause of action created by the Illinois wrongful death act.4 Prior decisions have established that the Illinois statute is a “public act” within the provision of Art. IV, §1 that “Full Faith and Credit shall be given in each State to the public Acts … of every other State.” It is also settled that Wisconsin cannot escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent. We have recognized, however, that full faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state; rather, it is for this Court to choose in each case between the competing public policies involved. The clash of interests in cases of this type has usually been described as a conflict between the public policies of two or more states. The more basic conflict involved in the present appeal, however, is as follows: On the one hand is the strong unifying principle embodied in the Full Faith and Credit Clause looking toward maximum enforcement in each state of the obligations or rights created or recognized by the statutes of sister states, on the other hand is the policy of Wisconsin, as interpreted by its highest court, against permitting Wisconsin courts to entertain this wrongful death action.