A Non-Contentious Account of Article III's Domestic Relations Exception

32 Pages Posted: 15 Mar 2016

Date Written: March 14, 2016

Abstract

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 Essay 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.

Keywords: Domestic Relations, Family Law, Article III, Federal Jurisdiction

JEL Classification: K10, K30

Suggested Citation

Pfander, James E. and Damrau, Emily, A Non-Contentious Account of Article III's Domestic Relations Exception (March 14, 2016). Notre Dame Law Review, Forthcoming, Northwestern Public Law Research Paper No. 16-05, Available at SSRN: https://ssrn.com/abstract=2747767 or http://dx.doi.org/10.2139/ssrn.2747767

James E. Pfander (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Emily Damrau

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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