Anna Nicole Smith Case Roundup

With MSM focused on Anna Nicole Smith's case before the Supreme Court, there's lots of enlightening reading to be found. Here's some that have caught my eye [NB: vol. 2 here]:

  • Althouse reports on the oral argument and predicts Anna will win on the merits.
  • Broadsheet quotes Univ. of Chicago Law School's Doug Baird as saying: "I'd suspect some justices haven't the slightest idea who Anna Nicole is." [NB: I suppose they'd have a far better idea if the issues had been more "prurient" in nature.]
  • How Appealing! provides links to photos and to news reports from Newsweek, NPR (here and here), the AP (here and here), the Houston Chronicle, and USA Today.
  • SCOTUSblog, whose founders at Goldstein & Howe represent Anna's adversary, recaps the oral argument.
  • The Volokh Conspiracy links here to Dahlia Lithwick's "Supreme Court dispatches" on Slate.com (including a link to her story on NPR). Volokh's Jim Lindgren also separately provides this solid analysis of the case from a "T&E" (trusts and estates) perspective (though some may prefer the "T&A" perspective here).
  • Wonkette! offers some color commentary on the oral argument and the circus atmosphere outside (with links).
  • The WSJ Law Blog offers good background reading, updates, and links here, here, and here.

You can also find more background reading on the case at my posts here, here, here, and here.

Finally, Anna's reply brief, filed last week, can be found here (courtesy of SCOTUSblog). It provides the following two short -- but significant -- retorts:

The Respondent’s Brief employs three strategies to sell its broad “probate exception” to federal bankruptcy jurisdiction. First, it relies heavily on dicta rather than holdings. Emblematic of this approach, the brief offers this law review article quotation in support of its claim of a broad, widely-accepted probate exception: “ ‘[O]ne of the most widely stated generalizations in the area of federal jurisdiction is that federal courts can exercise no probate jurisdiction. Statements have been made to that effect in approximately 250 reported federal cases.’ ” Resp. Br. 26, quoting Allan D. Vestal & David L. Foster, Implied Limitations of the Diversity Jurisdiction of Federal Courts, 41 Minn. L. Rev. 1, 13 (1956-1957). But the brief omits the article’s next sentence that directly undermines the brief’s central thesis: “The holdings of the cases, however, do not support the generalization.”


Second, the brief places great emphasis on an inaccurate version of the facts. For example, the brief contends Vickie went to the bankruptcy court because she was forum-shopping her claim of tortious interference with an inter vivos gift. But the very first time she asserted that claim was in the bankruptcy court in 1996, as a compulsory counterclaim to Pierce’s creditor’s claim. Four years later, in 2000, she filed it in the probate court, as a prophylactic measure after Pierce asserted the bankruptcy court lacked jurisdiction to decide it. The brief distorts these facts by conflating two separate “tortious interference” claims: a claim for interference with spousal support that Vickie filed in Howard’s 1995 guardianship proceeding, and the unrelated interference with gift claim she filed in 2000 in Howard’s probate case.

The main focus of the reply brief, however, is its attack on the policy arguments made by Pierce's lawyers, as to which Anna's lawyers argued:

The [respondent's] brief argues policy, much of it a paean to exclusive probate court jurisdiction of all matters related to a decedent’s property. Whatever the merits of such a scheme – and whether they outweigh the policies that inform the present system of concurrent federal jurisdiction over such matters – are questions for Congress.


To prevail here, Pierce must be right twice: Congress must have intended an implied “probate exception” to bankruptcy jurisdiction, and that exception must be broad enough to encompass Vickie’s tort action against Pierce. But his argument for an implied exception in bankruptcy is wrong because (a) no “probate exception” applied in bankruptcy when Congress adopted the Bankruptcy Act in 1978; (b) the purpose of the 1978 bankruptcy overhaul was expressly to expand jurisdiction over bankruptcy-related claims and eliminate the balkanization that a “probate exception” would represent; and (c) Congress addressed federal-state comity concerns in bankruptcy through broad abstention provisions, not jurisdictional exclusions. And Pierce is also wrong about there being a broad probate exception – for the simple reason that this Court’s cases completely refute it.

Finally, virtually every policy concern raised by Pierce and his amici are addressed by application of currently prevailing preclusion and bankruptcy abstention principles. To the extent (if any) they are not, the proper audience is Congress.

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