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

James E. Pfander* & Emily K. Damrau**

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 Article 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.

Continue reading in the print edition . . .

© 2016 James E. Pfander & Emily K. Damrau. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Owen L. Coon Professor of Law, Northwestern Pritzker School of Law. Thanks to the Northwestern Pritzker law faculty foundation for research support, to the Owen Coon senior research program, and to Barbara Atwood, Naomi Cahn, Jill Hasday, Bob Pushaw, Kim Yuracko, and the Northwestern Pritzker faculty workshop for comments on an early draft.

**J.D. Northwestern University School of Law, May 2015.