Justin R. Long (University of Connecticut School of Law) has posted Against Certification (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
- Certification is the process whereby federal courts, confronted by an open question of state law in federal litigation, ask the relevant state high court to
decide the state law question. If the state high court chooses to answer, its
statement of state law stands as the definitive declaration of the law on the
disputed point. The case then returns to the certifying federal court, which
resolves any remaining issues, including federal questions, and then issues a
mandate. Although a wide range of academic commentators and jurists support
certification as an example of respect for state autonomy, this Article shows that
in both practice and theory certification does not reflect real comity. Rather,
certification is an example of “dual federalism,” the view that state and federal
law ought to be isolated into separate spheres of jurisprudence. For federal
courts to show genuine respect for state law, they should stop treating it as
foreign and decide open state law questions without certification.