Document Type
Article
Publication Date
2023
Abstract
Since the mid-twentieth century, federal courts have certified questions of state law to state supreme courts. Rather than speculate on how a state's high court would rule on a given issue, federal courts allow the state court to determine the question itself. In so doing, the federal judiciary promotes comity and consistency while discouraging forum shopping. Yet, federal courts do so at the cost of judicial economy and speedy adjudication of litigants' pending claims.
The United States Court of Appeals is divided into thirteen circuits, of which eleven exercise jurisdiction encompassing states in the Union. Each circuit, as explained in Part III, uses its own test to determine when to certify a question of state law to that state's judiciary. Importantly, though, certification is a dance requiring a partner. While the federal circuit courts must determine which cases involving state issues to send to the state courts, the states must also agree to accept the certified question.
Federal courts need a uniform standard for choosing which questions to certify to state courts to better promote consistency, preserve judicial economy, and prevent forum shopping. Debates continue in the judiciary and scholarly community as to the advisability of the certified question doctrine.
Thus, this Article advocates a reform to the system rather than a complete disassembly, and it does not discuss the continued viability of the practice. Rather, it proposes a standard for federal courts to use when determining whether to certify is the following: first, the question must be determinative of the case pending before the federal court; second, the court must ascertain whether an existing mandatory or persuasive state precedent is directly or indirectly on point for the issue; and finally, if not, the court should consider whether the question is one of state constitutional law. If it is, the court may certify.
This Article presents the proposal in six sections. Part II surveys the history of certification. Part III outlines the current certification standards employed by the eleven circuit courts with jurisdiction encompassing the states. Part IV argues for the need for a uniform standard, proposes a new test, and analyzes the logistics of implementing reform. Finally, Part V briefly concludes.
Recommended Citation
Bailey D. Barnes,
A Uniform Standard for Certifying Questions to State Courts, 61 University of Louisville Law Review 567
(2023).
Available at: https://scholarship.law.missouri.edu/facpubs/1285