TY - JOUR
T1 - A non-contentious account of article III's domestic relations exception
AU - Pfander, James E
AU - Damrau, Emily K.
N1 - Publisher Copyright:
© 2016 James E. Pfander & Emily K. Damrau.
PY - 2016
Y1 - 2016
N2 - Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth-century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court's twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force. This Article offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between "cases" and "controversies." Much domestic relations law fails to present a "controversy" within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear "cases" arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.
AB - Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth-century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court's twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force. This Article offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between "cases" and "controversies." Much domestic relations law fails to present a "controversy" within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear "cases" arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.
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M3 - Review article
AN - SCOPUS:85007305630
SN - 0745-3515
VL - 92
SP - 117
EP - 165
JO - Notre Dame Law Review
JF - Notre Dame Law Review
IS - 1
ER -