Friday, January 27, 2006
Christian J. Grostic has recently released his paper entitled A Prudential Exercise: Abstention and the Probate Exception to Federal Diversity Jurisdiction on SSRN. The abstract explains:
Despite criticism, the probate exception has endured in the U.S. federal court system for over two hundred years. Looking back, we can now see that the probate exception fits remarkably well within another widely-criticized doctrine developed by the federal courts - abstention doctrine. The two doctrines are built on similar practices and prudential justifications, practices and justifications that extend from eighteenth century England through modern America.
Federal courts should apply the route test to determine the boundaries of the probate exception. The route test best reflects the proper understanding of the probate exception as a category of abstention doctrine, as well as the historical and modern practices and justifications for the probate exception. While applying the route test, courts still have the ability to appropriately limit expansion and contraction of the probate exception without violating the underlying prudential justifications for the exception.