Between Judgment and Law: Full Faith and Credit, Public Policy, and State Records

Abstract

Although the Full Faith and Credit Clause was intended to solidify the Union by requiring states to give appropriate respect to the official acts of other states, the application of the Clause has been controversial and analytically challenging. Full faith and credit caselaw has developed along diverging paths: one path requiring “exacting” faith and credit for final judgments and the other path severely limiting the faith and credit given to legislative acts through the creation of a public policy exception.

State records that are not a close fit within the two paradigms of “judgment” and “law” have been largely neglected in the Supreme Court’s treatment of full faith and credit. In 2011, however, the Fifth Circuit’s en banc decision in Adar v. Smith revealed a resurgent, if not novel, debate over whether the public policy exception should apply to just such a hybrid circumstance: non-adversarial judicial records.

This Comment argues that because the Full Faith and Credit Clause is a rule of evidence designed to facilitate interstate comity without infringing on the sovereignty of the states, states are obliged, by virtue of res judicata, to “recognize” most out-of-state records. However, states can refuse, by virtue of the public policy exception, to “enforce” those same records. The public policy exception, traditionally limited to public acts, therefore applies to the full spectrum of state records covered by the Clause.

Keywords: full faith and credit, constitutional law, Adar v. Smith, Fifth Circuit, Baker v. General Motors, state records, public policy exception