Sun Oil Co. v. Wortman

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 *735reach 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. See Wells v. Simonds Abrasive Co., 345 U. S. 514 (1953) (shorter); Townsend v. Jemison, 9 How. 407 (1850) (longer); McElmoyle v. Cohen, 13 Pet. 312 (1839) (shorter). 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.1 See Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985); Allstate Ins. Co. v. Hague, 449 U. S. 302 (1981). .1 conclude that it has not.

I start, as did the Court ,in Wells, by emphasizing that “[t]he Full Faith and Credit Clause does not compel a state to adopt any particular set of rules of conflict of laws; it merely sets certain minimum requirements which each state must observe when asked to apply the law of a sister state.” 345 U. S., at 516. The minimum requirements imposed by the Full Faith and Credit Clause2 are that a forup 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, quot*736ing 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 application of the forum’s law on purely procedural questions “neither arbitrary nor fundamentally unfair.” Phillips Petroleum, supra, 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.

*737Given 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 *738nonresidents, 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 periods 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 Pe*739troleum, 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. See ante, at 729-730, n. 3. 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, Wells, 345 U. S., at 516, and we have already held that distinctions similar to those offered above “are too unsubstantial to form the basis for constitutional distinctions,” id., at 517-518 (holding that it is constitutionally irrelevant whether the foreign limitations period is built into the statutory provision creating the out-of-state cause of action at issue). 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. Ante, at 728. 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.

*740Even more troublesome is the Court’s sweeping dictum that any choice-of-law practice that is “long established and still subsisting” is constitutional. Ibid. 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, supra, at 818. 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, see ante, at 723-726, 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.3 The Court never offers a satisfactory *741explanation 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 *742approves 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, at 743 (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).4

*743In short, I fear the Court’s rationale will cause considerable mischief with no corresponding benefit. This mischief is all the more unfortunate because it appears to stem from the misperception that this case cannot be resolved without conclusively labeling statutes of limitations as either “procedural” or “substantive.” Having asked the wrong question (and an unanswerable one), it is no wonder the Court resorts to tradition rather than analysis to answer it. Because I believe a careful examination of the Phillips Petroleum test and the governmental interests created by the relevant contacts provides narrower and sounder grounds for affirming, I concur in the judgment.

I agree with the Court’s rejection of petitioner’s additional argument that the constitutionality of applying the forum State’s limitations period should be judged under the “outcome-determinative” test of Guaranty Trust Co. v. York, 326 U. S. 99 (1945). See ante, at 726-727.

The minimum requirements imposed by the Due Process Clause are, in this context, the same as those imposed by the Full Faith and Credit Clause. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818-819 (1985); Allstate Ins. Co. v. Hague, 449 U. S. 302, 308, and n. 10 (1981) (plurality opinion of BRennan, J., joined by White, Marshall, and Blackmun, JJ.); id., at 332 (Powell, J., joined by Burger, C. J., and Rehnquist, J., dissenting).

The Court miscites Milwaukee County and Estin v. Estin, 334 U. S. 541 (1948), for the proposition that the Full Faith and Credit Clause merely made traditional principles of conflicts law enforceable as a matter of constitutional command. See ante, at 723-724, n. 1. Although the Court correctly notes that Estin states that the Full Faith and Credit Clause “substituted a command for the earlier principles of comity,” Estin, supra, at 546, nowhere does Estin state that the content of that substituted command is determined by reference to principles of traditiohal conflicts law. To the contrary, Estin never refers to traditional conflicts law but rather decides the full-faith-and-credit issue by carefully examining the interests of the various States in having their law applied. 334 U. S., at 546-549. Similarly, Milwaukee County does not rely on traditional conflicts law but on the conclusion that the interests behind the local policy were “too trivial to merit serious consideration when weighed against the policy of the constitutional provision and the interest of the [foreign] state whose judgment is challenged.” Milwaukee County v. M. E. White Co., 296 *741U. S., at 277. Indeed, Milwaukee County expressly noted that its holding that a forum State was constitutionally obligated to enforce a foreign judgment for taxes conflicted with the traditional (and then-subsisting) conflicts of law rule that such foreign judgments were unenforceable. Id., at 279, n. 4 (citing and declining to follow § 443 of the 1934 Restatement of Conflict of Laws). See also Restatement of Conflict of Laws § 443, p. 159 (Supp. 1948) (explaining that this traditional conflicts rule had to be modified because it had been invalidated in Milwaukee County). Although Milwaukee County also stated that only a single case had decided the question whether a State’s tax judgment was entitled to full faith and credit in another State, Milwaukee County, supra, at 278, the Court did not question the fact that the rule against enforcing foreign tax judgments accorded with then-accepted common-law conflicts doctrine. See also E. Scoles & P. Hay, Conflict of Laws §§24.19, 24.23 (1982). In fact, this traditional conflicts rule continues to subsist in the international context where the Full Faith and Credit Clause does not apply. See, e. g., Her Majesty, Queen in Right of Province of British Columbia v. Gilbertson, 597 F. 2d 1161, 1163-1166, andn. 8 (CA9 1979); Commissioner of Taxes, Federation of Rhodesia v. McFarland, [1965(1)] S. A. 470, 472 (South Africa Sup. Ct. 1964); United States v. Harden, [1963] S. C. R. 366 (Canada Sup. Ct.); Uniform Foreign Money-Judgments Recognition Act § 1(2), 13 U. L. A. 263 (1986) (excluding foreign tax judgments from the judgments enforceable under the Act) (adopted in 16 States); Foreign Judgments (Reciprocal Enforcement) Act, 1933, 23 & 24 Geo. 5, ch. 13, pt. I, § l(2)(b) (same). That Milwaukee County did not also invalidate the traditional rules barring adjudication of a foreign tax suit or enforcement of a foreign penalty judgment, see ante, at 723-724, n. 1, is irrelevant— Milwaukee County reasoned that the constitutional validity of those conflicts rules was not presented, not that their traditional status rendered them sacrosanct. The simple fact remains that the question the Court addressed in Milwaukee County, like the question we should address in this case, was not one of conflicts law but of whether as a constitutional matter the forum State had interests justifying application of its own law. “Of that question this Court is the final arbiter,” Milwaukee County, supra, at 274, not tradition or existing practice.

The Court misses the point by stating that relying on tradition is not “unusual.” Ante, at 728, n. 2. That we have in other contexts examined tradition to determine the constitutionally permissible' authority of courts is no explanation for abandoning the “interest-contacts” test we have long applied to determine the constitutionally permissible authority of States under the Full Faith and Credit Clause. Nor does it explain why we should adopt a constitutional test that, in the context of conflicts of laws, is confused and purposeless. The Court only heaps more confusion on its “traditional and subsisting practice” test by asserting that by the time of Allstate Ins. Co. v. Hague, 449 U. S. 302 (1981), the rule that the law of the place of contracting applies “could not have been characterized as a subsisting tradition, if it ever could have been.” Ante, at 728, n. 2. The doubt expressed about whether this rule was ever a subsisting tradition is remarkable given that it was once the dominant rule for determining what law applied in contract cases. See, e. g., Restatement of Conflict of Laws § 332 (1934). True, by the time of Allstate the rule no longer commanded a consensus, but the rule still “subsisted” in a majority of States. Scoles & *743Hay, Conflict of Laws § 18.21, at 666-667. It is difficult to see why this lack of uniformity or the existence of “escape devices” should render this traditional rule any less of a “subsisting tradition” than the rule that the limitations period of the forum governs, which does not apply in many States and which is subject to “escape devices” allowing application of the foreign limitations period when it is “built into” the statute creating the right, when it has attributes the forum State would regard as substantive, when it is considered substantive by the foreign State, and when the forum State has a borrowing statute. See generally Restatement (Second) of Conflict of Laws § 143 and Reporter’s Note (1971) (collecting cases).