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Monday, May 01, 2006

A Jurisprudence of [No] Doubt: Justice Stevens and Federal Jurisdiction

For federal courts geeks like me, the Supreme Court's unanimous decision today in the Anna Nicole case, Marshall v. Marshall, is a real treat. In what might fairly be described as further evidence of the Roberts Court's minimalism, the Court doesn't reach the scope of the so-called "probate exception" to federal jurisdiction; they merely hold that Anna Nicole's case falls outside of whatever "it" is.

But what's far more of a worthy read is Justice Stevens's short opinion concurring in part, and concurring in the judgment. Justice Stevens comes to bury the probate exception, not to praise it (with some citations omitted):

To be sure, there are cases that support limitations on federal courts’ jurisdiction over the probate and annulment of wills and the administration of decedents’ estates. But careful examination reveals that at least most of the limitations so recognized stem not from some sui generis exception, but rather from generally applicable jurisdictional rules. Some of those rules, like the rule that diversity jurisdiction will not attach absent an inter partes controversy, plainly are still relevant today. See, e.g., Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33, 44–45 (1909); see also id., at 46 (reaffirming the in gremio legis principle). Others, like the rule that a bill in equity will lie only where thereis no adequate remedy elsewhere, have less straightforward application in the wake of 20th-century jurisdictional developments. Whatever the continuing viability of these individual rules, together they are more than adequate to the task of cabining federal courts’ jurisdiction. They require no helping hand from the so-called probate exception.

Rather than preserving whatever vitality that the “exception” has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker-Feldman doctrine. See Lance v. Dennis, 546 U. S. ___, ___ (2006) (STEVENS, J., dissenting) (slip op., at 2–3).

First, an aside: I had to look it up, but according to Black's, "in gremio legis" means "In the bosom of the law. This is a figurative expression for something that is under the protection of the law, such as a land title that is in abeyance." Who knew??

But what's more interesting here are the broader implications for jurisdictional abstention doctrines, and the extent to which we've overlooked the purposes they serve.

As Justice Stevens's last cite makes clear, this isn't the first time this Term that he has written separately largely, if not exclusively, to suggest his desire to do away with an abstention rule in its entirety. As I flagged at the time, Justice Stevens, in his dissent in the Colorado redistricting case, went out of his way to note the interment of the Rooker-Feldman doctrine at the end of the 2004 Term in the Saudi Basic case, noting that "today, the Court quite properly disapproves of the District Court’s resuscitation of a doctrine that has produced nothing but mischief for 23 years."

Make no mistake -- I'm way on board with Justice Stevens in suggesting that Rooker-Feldman's caused nothing but mischief, and that the "probate exception" to federal jurisdiction hasn't fared much better.  But, like the other, more well-known abstention doctrines (Burford, Younger, Pullman, Thibodaux, Colorado River), they serve an important purpose: Helping lower courts clear their dockets.

For sure, I imagine that, like me, Justice Stevens doesn't believe that the size of the lower courts' dockets can or should justify reliance on dubious, judge-made doctrines to avoid cases over which they properly have jurisdiction. At the same time, to kill off (or argue for the killing off of) these doctrines one-by-one, without recognizing the ends they serve, or the problems that their eradication will likely create, strikes me as curing the symptom, rather than the disease.

That is to say, I'm very opposed to just about all of the abstention and abstention-related doctrines out there, because it seems to me that it's up to Congress to confer jurisdiction, and that courts must exercise that jurisdiction which they posess. But I'd be naive if I didn't recognize that these doctrines serve a rather important purpose, at least in the lower courts. And so, if we're going to get rid of them, it seems like there's another conversation that needs to be had: How do we reduce pressure on the lower courts and diminish the size of their caseloads, and do it in a more principled fashion? Raise the amount in controversy in diversity cases? More district judges? I'm not sure what the answer is; all I do know is that doing away with Rooker-Feldman, the probate exception, and, likely next, the other abstention doctrines, will only make things harder on the lower courts, and that can't be good, either...

Posted by Steve Vladeck on May 1, 2006 at 04:44 PM in Current Affairs, Steve Vladeck | Permalink

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Is Stevens being dirty?

Posted by: Anon | May 1, 2006 4:52:30 PM

But Steve, a couple of points: (1) Do we know what percentage of the docket comprises cases subject to potential abstention? It is not clear to me, absent some numbers, that even abstention run full tilt would do much to diminish docket pressures. (2) None of the abstention doctrines are designed to deal with docket pressure issues: Younger is about "our federalism" and limiting interference with state court enforcement proceedings; Pullman about constitutional avoidance; Burford about complex state regulatory regimes; Colorado River about I'm not quite sure what; and domestic relations and probate about some adventurous readings of history. So it seems to me that these doctrines need to be evaluated on their own merits, not on the basis of the incidental effects they may (or may not) have.

Posted by: Anon. Student | May 1, 2006 7:22:19 PM

"Anon. Student" -- Obviously, we're not talking huge numbers, but not insignificant numbers, either. I read something once somewhere that suggested that the number of cases dismissed in the district courts each year on the basis of Rooker-Feldman was somewhere in the 100s, and that, adding all of the abstention doctrines together, the figure jumped into the 1000s.

Of course, the doctrines need to be evaluated on their merits. I wouldn't dare suggest otherwise. But there's a reason why lower courts have consistently championed such broad readings of virtually every abstention doctrine (by "broad" I mean "broader than what's directly supported by Supreme Court precedent), and we should be at least somewhat cognizant of that reason -- the docket pressure on lower courts -- when dismantling (as I believe is appropriate) the overreaching of the lower courts.

Posted by: Steve Vladeck | May 1, 2006 7:35:11 PM

A bit off point, but ... I think In Gremio Legis is a GREAT name for a blawg.

Posted by: Joe Miller | May 1, 2006 8:58:13 PM

Stevens doesn't get credit for in gremio legis. It's a whole section of petitioner's brief.

Posted by: r.friedman | May 3, 2006 2:47:34 PM

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