Burrus’s Empirical Analysis

Citation profile

305 federal appellate · 103 district · 174 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 1,152 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”

   56 later decisions quote this exact passage
   e.g. Ridgway v. Ridgway · Ankenbrandt Lr Sr v. A Richards

2. “but a Circuit Court may have.” An understanding of Burrus requires an appreciation that in 1889 the old district courts did not have jurisdiction in diversity. That jurisdiction was still, as it had been since 1789, vested in the old circuit courts. In Burrus , a case involving diversity of citizenship between father, and grandparents, a district court judge issued a writ of habeas corpus directing the grandparents to surrender custody of the father’s child. The grandparents defied the writ and the grandfather was committed to the custody of the United States Marshal for contempt. In the exercise of its appellate jurisdiction the Supreme Court, in an original habeas corpus proceeding, ordered the grandfather’s release because the district court did not have jurisdiction to issue the writ of habeas corpus. Two arguments were made for district court jurisdiction. One was based on the habeas corpus statute, but that statute did not then, and does not now, refer to detentions by private parties unless the detention violates some federal law. The other was that the All Writs Statute, § 14 of the Judiciary Act of 1789, gave the district court power to issue a writ of habeas corpus in aid of its jurisdiction. The difficulty in Burrus was that the district court did not yet have jurisdiction over diversity cases and there was no federal question. Thus the court held that the district court lacked jurisdiction to issue the writ. But it said: “Whatever, therefore, may be held to be the”

   3 later decisions quote this exact passage · from the majority
   e.g. Solomon v. Solomon · Lynne E. Solomon, Parent and Natural Guardian of Patricia Solomon v. John F. Solomon, Jr

3. ““So far as the question whether the custody of a child can be brought into litigation in a circuit court of the United States, even where the citizenship of the opposing parties is such as ordinarily confers jurisdiction on that court, the matter was left undecided in the case of Barry v. Mercein [ 5 How. 103 ]. Obviously, although the statutes of the United States have since enlarged the jurisdiction of the circuit courts by declaring that they shall have original cognizance, concurrent with the courts of the several stales, of all civil suits arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, the difficulty is not removed by tliis provision, for, as we have already said, the custody and guardianship by the parent of his child does not arise under the constitution, laws, or treaties of the United States, and is not dependent on them. But whether the diverse citizenship of parties contesting this right to the custody of the child could, in the courts of the United States, give jurisdiction to those courts to determine that question, has never been decided by this court, that we are avaro of. Nor is it necessary to decide it in this case, for the order for the violation of which the petitioner is imprisoned for contempt is not a judgment of the circuit court of .the United States, but a judgment of the district court of the same district.””

   2 later decisions quote this exact passage · from the majority
   e.g. King v. McLean Asylum of the Massachusetts General Hospital · Lehman v. Lycoming County Children's Services Agency