Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, August 1, 2014

Article on the Probate Exception


James E. Pfander (Northwestern University School of Law) and Michael J.T. Downey (U.S. District Court for the Northern District of Illinois) recently published an article entitled, In Search of the Probate Exception, Vanderbilt Law Review, Vol. 67; Northwestern Public Law Research Paper No. 14-28 (June 26, 2014).  Provided below is the abstract from SSRN:

As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal jurisdiction over ecclesiastical matters, the “law” and “equity” limits of Article III, and the structure of our federal government. The Supreme Court’s 2006 decision in Marshall v. Marshall sought to clarify matters, but lower courts continue to debate the breadth of the exception.

In this essay, we go in search of the probate exception. After surveying the ecclesiastical jurisdiction account, the law-and-equity constraints, and the doctrine of federalism, we conclude that these familiar arguments do not offer a persuasive justification for maintaining a gap in federal judicial power. A more promising suggestion appears in Article III’s case-or-controversy requirement. Understood as requiring live disputes between adverse parties, the case-or-controversy requirement might appear to rule out much ex parte or administrative work of the kind commonly conducted in the course of probate proceedings. Yet the federal courts have a long tradition of hearing administrative matters, from the naturalization petitions that arrived on federal dockets in 1790 to the bankruptcy proceedings that unfold each day in the Article III judiciary. Even today, Article III courts entertain applications for FISA warrants on an ex parte basis and conduct ex parte inquiries into applications for the entry of default judgments.

Although the tradition of non-contentious federal jurisdiction casts serious doubt on some broad accounts of the case-or-controversy requirement, we think the best resolution lies in distinguishing cases from controversies, in upholding the power of the federal courts to administer the law only when the original ex parte claim being asserted presents a “case” under federal law, and in continuing to insist on full adverse-party disputes in all “controversies” governed by state law. On that view, federal courts lack the power to entertain stand-alone original ex parte applications for probate so long as they remain creatures of state law. Federal involvement in state law matters requires a “controversy” (and the existence of a controversy may carry ancillary power to issue default judgments on an ex parte basis). But if Congress were to federalize the law of decedents’ trusts and estates, exercising an appropriate source of federal power, Article III courts could hear original petitions for the probate of federal wills as “cases” within the judicial power.


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