Prof. Sack Posts Article on the Domestic Relations Exception

Prof. Emily Sack has recently posted an article entitled The Domestic Relations Exception, Domestic Violence, and Equal Access to Federal Courts on SSRN. Here is the Abstract:

This article examines the classic issue of the allocation of jurisdiction between the state and federal courts, with an untraditional focus on family law, domestic violence, and women's access to federal courts. The piece first explores the domestic relations exception to federal jurisdiction, a longstanding judge-created doctrine under which the federal courts lack jurisdiction to hear divorce, custody and other family matters traditionally reserved to the states. In the recent case of Marshall v. Marshall, 126 S. Ct. 1735 (2006), the Supreme Court had the opportunity to abandon the domestic relations exception (as well as its relative, the probate exception), but refused to do so, despite acknowledging the weak rationale for maintaining it. The article critiques the traditional explanations for the exception's existence, and argues that its roots may be traced to the principles of coverture. The "exception" may in fact not be an exception to jurisdiction at all, but rather a recognition that divorce and related cases could not meet federal diversity requirements, because married women could not establish citizenship separate from that of their husbands. This explanation reveals both one of the primary causes for the exception's creation, and the consequences of maintaining it - the consideration of family law as a "woman's issue" that is not deserving of the attention of the federal courts.

The article goes on to suggest that the legacy of the exception can be seen in the Court's treatment of domestic violence cases. It focuses primarily on Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005), which held that a domestic violence victim had no constitutionally protected property interest in the enforcement of a protection order, and therefore no claim under § 1983. In so doing, the Court has again restricted federal court review of issues that centrally concern women. The article concludes that the domestic relations exception should be abolished as a significant first step. However, the Supreme Court must also recognize that in its denial of federal rights to victims of domestic violence, it is continuing to deny all women full participation and citizenship.