Posted: 30 Sep 1998
Date Written: May 1998
Whose law should govern the claim preclusive or issue preclusive effect of a judgment from one jurisdiction in subsequent litigation in another jurisdiction? The article examines the problem of choice of preclusion law, focusing on the impact of preclusion law variations on the course of litigation. First, the article considers the effect of preclusion law on the behavior of litigation participants, and concludes that preclusion law affects many significant strategic decisions, particularly at the forum of the prior action (F1). The article then shows that preclusion rules vary from one jurisdiction to another, much more than most lawyers would suspect. Finally, the author examines how courts in fact treat the interjurisdictional effect of judgments, focusing on the federal-state configuration, and finds that state courts most often reflexively apply their own preclusion law rather than the law of F1. Given the importance of preclusion law to litigation behavior at F1, and the need for a clear rule determinable at the time of the original action, the author argues that the preclusive effect of a judgment, with rare exceptions, should be governed by the preclusion law of the jurisdiction that rendered the judgment.
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