Michigan Law Review Volume 62 Issue 1 1963 The Constitution and Preclusion/Res Judicata Allan D. Vestal State University of Iowa Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Jurisdiction Commons, and the Litigation Commons Recommended Citation Allan D. Vestal, The Constitution and Preclusion/Res Judicata, 62 MICH. L. REV. 33 (1963). Available at: https://repository.law.umich.edu/mlr/vol62/iss1/3 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE CONSTITUTION AND PRECLUSION/RES JUDICATA Allan D. Vestal* HE interrelation of lawsuits is one of the most troublesome, T yet least commented upon, areas of the law.1 The ramifica­ tions are great; related lawsuits may be pending concurrently, either brought by the same individual-repetitive litigation2--or brought by different parties-reactive litigation.3 Such lawsuits may occur serially over a period of time. The courts are then faced with problems which have traditionally been discussed in terms of res judicata, bar, merger, or estoppel.4 It is impossible to cover the whole area or even a sizable part of it in a single article, but it is feasible to examine one facet which certainly war­ rants consideration: the constitutional involvement in the inter­ relation of suits. Before plunging into the topic, it is necessary to consider the terminology used in the discussion. It seems apparent that the courts and commentators are not happy with the terms now being used.1'• There is no clarity or definitude in these terms, especially res judicata and estoppel. In recent years the courts have tended to use the term "preclusion" when referring to a situation in which litigation is foreclosed. 6 To clarify the matter further, m • Professor of Law, State University of Iowa.-Ed. 1 See BOWER, THE DoC'IlUNE OF REs JuDICATA (1924); EVEREST &: STRODE, ESTOPPEL (3d ed. 1923); Moschzisker, Res Judicata, 38 YALE L.J. 299 (1929); Developments in the Law­ Res Judicata, 65 HARv. L. R.Ev. 818 (1952). 2 See Vestal, Repetitive Litigation, 45 IowA L. R.Ev. 525 (1960). 3 See Vestal, Reactive Litigation, 47 IowA L. REv. 11 (1961). 4. In the introductory note to Chapter Three on "Former Adjudication," it is pointed out that "the term 'res judicata' is used ... in a broad sense as including merger, bar, collateral estoppel and direct estoppel." RESTATEMENT, JUDGMENTS 160 (1942). When a judgment is in favor of plaintiff, there is a merger of the cause of action into the judgment. Id. § 47. When the defendant wins on the merits, the judgment acts as a bar to plaintiff's cause of action. Id. §§ 48-54. When there is a subsequent controversy on a different cause of action, but involving some of the same questions, collateral estoppel prohibits relitigation of matters actually litigated previously. Id. §§ 68-72. 5 Professor Austin Wakeman Scott, joint Reporter of the Restatement of Judgments with Professor Warren A. Seavey, indicated that "It was with some hesitation that we determined to use the term 'collateral estoppel.' There is no doubt that the word estoppel is frequently used very loosely.••. We toyed with the notion of using the term 'precluded by judgment,' or of saying that there is a 'collateral preclusion.' " Scott, Col­ lateral Estoppel by Judgment, 56 HARv. L. REv. 1, 3 n.4 (1942). 6 See, e.g., Ford v. Ford, 371 U.S. 187, 194 (1962) ("We hold that the courts of South Carolina were not precluded by the Full Faith and Credit Clause from determining the best interest of these children and entering a decree accordingly.'') (Emphasis added.); Duke v. Durfee, 308 F.2d 209, 212, 213, 217 (8th Cir. 1962); Kimmel v. Yankee Lines, 224 F.2d 644, 646 (3d Cir. 1955); United States v. Silliman, 167 F.2d 607, 613 (3d Cir. [33] 34 MICHIGAN LAW REVIEW [Vol. 62 this discussion the term claim preclusion will be used to indicate a situation in which a claim has been decided conclusively and the matter is not open to further litigation. Issue preclusion will be used to describe the situation in which a single issue has been so decided. 7 It is hoped that these terms will help in analyzing the cases and in reaching meaningful conclusions in the area. CONSTITUTIONAL INVOLVEMENT The decision to give or refuse to give preclusive effect to a judgment may involve a number of different constitutional con­ cepts. Certainly four sections of the federal constitution should be considered in any analysis of the general area of preclusion: full faith and credit, due process, the right to trial by jury, and equal protection of the laws. 8 Full Faith and Credit: Courts Involved In a federal system such as ours it is possible to have four dif­ ferent situations involving courts of different jurisdictions in which a claim of preclusion is made. The first-preclusive-ac­ tion may be in either a state or federal court, and the second-in which the claim of preclusion is made-may be in either a state or federal court. This means then that (1) the first and second both may be in state courts, (2) the first may be in a state court and the second in a federal court, (3) the first may be in a federal court and the second in a state court, or (4) both the first and the second may be in federal courts. The full faith and credit section of Article IV of the Consti­ tution, one of the crucial concepts in this area, states that "Full Faith and Credit shall be given in each State to the public Acts, 1948) ("[A] judgment for the plaintiff in an action against one tort feasor acting in concert with others does not preclude the plaintiff from later suing another.') (Emphasis added.); Breswick &: Co. v. Briggs, 135 F. Supp. 397, 405 (S.D.N.Y. 1955); Hassenplug v. Victor Lynn Lines, Inc., 71 F. Supp. 70, 72 (E.D. Pa. 1947) ("The doctrine of res judicata admittedly precludes parties from demonstrating what is or may be the truth.') (Em­ phasis added.); Lynch v. Lynch, 250 Iowa 407, 412, 94 N.W .2d 105, 109 (1959); Frost v. Frost, 260 App. Div. 694, 696, 23 N.Y.S.2d 754, 757 (1940) ("The Nevada action could have been defeated by proof that the marriage of the parties was invalid on account of the invalidity of the Mexican decree. Having failed to make proof of that fact in the Nevada action, the plaintiff is precluded from litigating the issue now.') (Emphasis added.). 7 The phrase "issue preclusion" has not been used by the courts intentionally, but in Frost v. Frost, supra note 6, the court inadvertently came close, stating "[T]he plaintiff is precluded from litigating the issue now.'' s See U.S. CoNsr. art. IV, § 1 (full faith and credit clause); U.S. CoNsr. amends. V &: XIV, § 1 (due process clauses); U.S. CoNsr. amend. VII (right to trial by jury clause); U.S. CoNsr. amend. XIV, § 1 (equal protection under the law clause). 1963] PRECLUSION/RES juDICATA 35 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." This provision means that when the first suit is in a state court and the second is also in a state court, there is a con­ stitutional requirement of Full Faith and Credit. The constitu­ tional provision, however, does not mention federal courts. The full faith and credit clause has been supplemented by 28 U.S.C. section 1738, which provides: "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 Terri­ tories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."9 Several things should be noted about this statutory provision. First, it encompasses more than just the courts of the states.10 Sec­ ond, it provides for the giving of full faith and credit by the fed­ eral courts. As the United States Supreme Court has stated, "The full faith and credit clause, together with the legislation pursuant thereto, applies to judicial proceedings of a state court drawn in question in an independent proceeding in the federal courts."11 As this statute makes the concept of full faith and credit applicable in federal courts, it can be stated that, when the first suit is in a state court and the second is in a federal court, the requirement of full faith and credit is statutory in origin.12 If the first suit is in a federal court and the second is in a state court, what then of the doctrine of full faith and credit? The constitutional provision does not apply; neither does the statutory implementation. However, the United States Supreme Court, in Stoll v. Gottlieb, stated: "The Congress enacted, as one of the earlier statutes, pro­ visions for giving effect to the judicial proceedings of the courts. This has long had its present form. This statute is broader than the authority granted by Article Four, section 0 28 u.s.c.