Date01 May 2020
AuthorRipple, Kenneth F.


In1995, the American Judicature Society (AJS) undertook a comprehensive surveyof certification. (1) The survey explored federal courts' use of certification as well as how judges perceived its use: whether certification was being over- or underused, when it should be used, and its shortcomings and advantages. (2) The survey was not limited to federal judges--the individuals who certifyquestions; it also solicited the views of state court judges--the individuals to whom certified questions are directed. (3) The report generated in the survey's wake revealed overwhelmingly positive attitudes toward certification asa tool of "cooperative federalism." (4) Nevertheless, some judges voiced concern that certification could be overused and could frustrate the ability of partiesto litigate, of federal judges to adjudicate, and of state judges to handle an already crowded docket. (5) To others, the benefits of certification as a method for achieving comity simply were overblown. (6)

This Article uses the AJS's survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond its diversity origins to other areas of law where state law expertiseis uniquely important, such as habeas and the Armed Career Criminal Act(ACCA). Finally, the Article will consider ways in which the certification process can be further refined and expanded for the benefit of both the state and federal judiciaries as well as litigants.


As the AJS's report and numerous scholars have detailed, certification has its origins in Erie Railroad Co. v. Tompkins. (7) In Erie, the Court held that, "[e]xceptin matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State," whether that law is "declared by its Legislature in a statute or by its highest court in a decision." (8) Since that decision, federal judges sitting in diversity regularly have confronted "the problem of ascertaining the applicable state law," (9) with varying degrees of success. (10)

The Supreme Court first suggested certification as a possible remedy to Erie dilemmas in its 1960 opinion in Clay v. Sun Insurance Office Ltd. (11) Clay concerned the validity of a provision in an Illinois insurance policy that required an action on a claim for loss be brought within twelve months of discovery. (12) The owner of the policy had moved to Florida and instituted a federal diversity action more than two years after discovery of the loss. (13) Aftera jury found for the owner, the district court denied the insurance company's motionfor judgment, apparently believing that a Florida statute rendered the contractual time limitation ineffective. (14) The Fifth Circuit reversedon the ground that the application of the Florida statute to invalidate the time limitation violated due process. (15) The Supreme Court held, however,that the Fifth Circuit acted prematurely in reaching the constitutional question: the appellate court first should have determined whether the Florida statute actually applied to the contract provision at issue. (16) Noting that the Fifth Circuit had "indicated [that] it could not, on the available materials, make a confident guess how the Florida Supreme Court would construe the statute," the Supreme Court suggested a solution: "The Florida Legislature, with rare foresight, has dealt with the problem of authoritatively determining unresolved state law involved in federal litigation by a statute which permits a federal court to certify such a doubtful question of state law to the Supreme Court of Florida for its decision." (17)

Following the Clay decision, the Supreme Court of Florida promptly adopted a rule implementing the Florida statute, (18) and, in short order, the U.S. Supreme Court used the rule to certify questions to the Florida Supreme Court in two separate cases. (19) Those cases, however, did not provide any guidance to lower courts as to when certification should or should not be invoked. That guidance came in Lehman Bros. v. Schein. (20)

Lehman Bros. was a shareholder derivative suit filed in New York against a Florida company. (21) The district court concluded that Florida law applied, that it barred the relief sought, and, therefore, that summary judgment shouldbe granted to the defendants. (22) A panel majority in the Second Circuit reversed; it agreed with the district court that Florida law applied, but believed that the Supreme Court of Florida "probably" would follow the course set by a New York court. (23) The Supreme Court vacated and remanded to the Second Circuit with instructions to "reconsider whether the controlling issue of Florida law should be certified to the Florida Supreme Court," a proposal that had been urged by the panel dissent. (24) The Court observed:

We do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory. It does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism. Its use in a given case rests in the sound discretion of the federal court. Hereresort to it would seem particularly appropriate in view of the novelty of the question and the great unsettlement of Florida law, Florida being adistant State. When federal judges in New York attempt to predict uncertain Florida law, they act, as we have referred to ourselves on this Court in matters of state law, as "outsiders" lacking the common exposure to local law which comes from sitting in the jurisdiction. (25) Lehman Bros. provided the official imprimatur to certification as a means of discerningstate law. Beyond merely sanctioning certification as a discretionary tool,however, it provided the courts of appeals with some initial parameters for using that tool. In exercising its discretion to certify (or not) a question of state law, a federal court should be guided both by practical and jurisprudential considerations: Will certification save time, energy, and resources? Are the federal decisionmakers generally familiar with the law to be applied and the interests of that state? Will referral to the state judiciary "build a cooperative judicial federalism" by giving it the opportunity to develop its own state's law? (26)

The years following Lehman Bros. saw a steady increase in the number of states adopting certification procedures. (27) In 1976, only fifteen states allowed certification. (28) By 1995, the year of the AJS survey, forty-three states, the District of Columbia, and Puerto Rico formally had authorized certified questions. (29) Today, every state except for North Carolina allows certifications. (30)


It is tempting to let the numbers speak for themselves. If certification werea severe drain on state court resources, it seems that some state judiciaries, over time, would have opted out. However, state judiciaries steadily have followed Florida's lead. Moreover, state judiciaries have expanded, rather than restricted, the entities from which they will accept certified questions. (31) From the federal perspective, the possibility of some additional delay has not seemed to deter us from certifying questions of state law to the state supreme courts. (32) Nor have certifications resulted in significant delays, at least in our own circuit. (33)

Although the numbers affirm that certification currently is widely accepted and enjoys general approval, this result did not happen by accident, nor was it inevitable. In certification's infancy, the possibility that state courts could have become flooded with certified questions was real, and the merits of certification were uncertain. Through the efforts of the federal and state courts, it has developed into an effective tool of "cooperative judicial federalism." (34) Since Clay and Lehman Bros., the federal and state courts have engaged in a productive conversation regarding how certification can and shouldbe used for the benefit of both judiciaries. The states began this conversation with the adoption of certification statutes and rules.

Before determining whether it will exercise its discretion to certify a question, a federal court must ensure compliance with its own rules and those of the state court to which the question will be certified. (35) State court rules generally require that the question being certified "be determinative" or "may be determinative" of the litigation in the certifying court and that there is no controlling precedent. (36) Of the state courts in our circuit, Illinois and Wisconsin require only that the question posed "may be determinative"; (37) Indiana'srule, however, requires that the state law question be "determinative of the case." (38) All require that there be an absence of controlling precedent on the certified question. (39) In setting these requirements, the state courts sent a clear message to their federal counterparts: although open to providing guidance to the federal courts, they do not want to waste their time and effort. Questions sent to them must be critical to the case before the federal court, and the state courts must not have spoken authoritatively on the issue presented.

These requirements have functioned as the first line of defense to deter federal courts' overuse of certification. Federal courts have been respectful of these criteria and regularly observe that "[t]he most important consideration guiding the exercise of this discretion... is whether the reviewing court finds itself genuinely uncertain about a question...

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