In search of the probate exception

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 Article, we go in search of the probate exception. After concluding that some familiar arguments do not persuasively justify a gap in federal judicial power, we consider 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 of the unconstested ex parte or administrative work 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. Like many civil law tribunals, in short, the courts of the United States exercise what in Roman law was referred to as "contentious" and "noncontentious" jurisdiction.Although the tradition of noncontentious federal jurisdiction cannot easily coexist with some broad statements of Article III's supposedly inflexible adverse-party requirement, we think the best way to harmonize adversary rhetoric and noncontentious reality lies in the distinction between cases and controversies. We believe Article III permits the federal courts to administer the law only when the ex parte claim being asserted presents a "case" under federal law. At the same time, we think the Constitution requires full adverse-party disputes in all "controversies" governed by state law. On that view, federal courts lack the power to entertain stand-alone ex parte applications for probate so long as they remain creatures of state law. Federal involvement in state law matters requires a "controversy." But, if Congress were to federalize the law of decedents' trusts and estates with the exercise of an appropriate source of federal power, Article III courts could hear petitions for the probate of federal wills as "cases" within the judicial power.I. INTRODUCTIONAmong the enigmas of federal jurisdiction, the probate exception surely ranks with the most arcane. In simple terms, the exception operates to deprive federal courts of jurisdiction over certain probate matters, even those that would otherwise qualify for federal jurisdiction. But the exception rarely stays so simple. No less knowledgeable a figure than Richard Posner has described the exception as "one of the most mysterious and esoteric branches of the law of federal jurisdiction,"1 and many scholars, jurists, and practitioners would agree. We hope to contribute to this Symposium's exploration of the role of federal law and federal institutions in private wealth transfer by dispelling some of the uncertainty that surrounds the probate exception.One kind of uncertainty surrounds the exception's origins. Some scholars deny the very existence of the exception, portraying it as an outgrowth of a series of doctrines rather than a single coherent limit on federal judicial power.2 Others treat the exception as a fairly modest restriction on the statutory grant of diversity jurisdiction to the lower federal courts.3 Still others regard the exception as one of constitutional dimension. On one such constitutional theory (espoused by Justice Holmes, among others), the omission of ecclesiastical jurisdiction from Article III debars the federal courts from performing the probate chores that the English church courts had performed. …