And now a word from our sponsor ... or ... why Anna Nicole is double-d-licious

Jack Ayer ABI Resident Scholar (Visiting Prof. of Law, NYU Law School)

If you can say “bankruptcy,” “probate” and “jurisdiction” all in the same sentence without your head falling onto your chest, then you may have the makings of a bankruptcy lawyer. If you followed the Anna Nicole Smith case, you might be in that group that, according to the folks over at “The Man Show,” are among the 86 percent of all men who have watched Porky’s (while only 81 percent have actually read a book). So it is perhaps not surprising that the dullest Supreme Court case of the year received the most attention. For those who haven’t followed the case, Anna won a bankruptcy judgment against her deceased husband’s son in the bankruptcy court. The district court cut the size of the judgment, but otherwise affirmed. The Ninth Circuit reversed, holding that it was a probate matter that didn’t belong in the Federal courts to begin with. The Supreme Court on Monday reversed the Ninth Circuit. The Ninth Circuit now gets a chance to sort out the remaining issues. “Anna Nicole Smith” brought up 615 hits on Google News as of mid-morning today, the day after the decision. “Poor, dumb-as-a-stick Anna Nicole Smith,” yielded only one hit (a New York Daily News editorial), but it echoed a general sentiment. “A victory for white trash everywhere,” exulted the Boston Herald. Any way you slice it, Anna (a.k.a. Viki) Nicole (a.k.a. Lynn) Smith (a.k.a. Marshall), more famed for her strong bones and healthy complexion, was the ironic eye at the center of the paparazi-powered hurricane that surrounded her and her quest for $474 million—no, make that $88 million—no $44 million—anyway, whatever it is she is entitled to get as a chunk of the estate of her ex-husband.As a former newspaperman, I followed the slurry of media coverage to discern at least the outline of the narrow issues in the case. David G. Savage in the Los Angeles Times may have put it most precisely. Anna “won a unanimous ruling from the Supreme Court, “ he said, “that cleared the way for her to claim as much as $500 million from her late husband's estate.” Many reports made it clear that the Supreme Court’s decision was only the end of the beginning, not the beginning of the end. But Savage, better than most, pinned down the reason. He noted that that there were competing lawsuits: the Texas probate matter and the California bankruptcy case. “The Supreme Court did not decide whether the Texas court or the federal bankruptcy court handed down the first decision,” he said. “Usually, when judges are dueling over who gets to decide an issue, the first ruling is honored in the end.” Pressing the envelope, Savage went further and tied in the one concept even more forbidding than the bankruptcy/probate alliance: the Internal Revenue Code. “The Internal Revenue Service often goes to federal court to seek taxes that are owed by an estate,” Savage pointed out. “For that reason, the Justice Department entered the case of Marshall v. Marshall on the side of the billionaire's widow.” At Knight-Ridder, David Montgomery added a hint of the broader implications of the decision. He pointed out that the case “could prompt lawyers to turn increasingly to the federal courts in estate cases,” in his article in the San Jose Mercury News. From a purely technical standpoint, the case is perhaps best understood not as a bankruptcy matter at all, but rather as a chapter in the history of federal jurisdiction—a point Justice Ruth Bader Ginsburg made tolerably clear in her majority opinion, limiting the scope of the probate exception (Justice John Paul Stevens, dissenting, would have gone further and expunged the probate exception altogether). The next stage (presumably back in the Ninth Circuit, whence it came to the Supreme Court) may well turn on nothing more than an issue of the fact—which opinion, state or federal, can be counted as “first” to dispose of the underlying issue.