Examining the Power of Federal Courts to Certify Questions of State Law

66 Pages Posted: 19 Jul 2004

Abstract

Attracted by the perception that certification accords with norms of federalism and comity, federal courts have applied certification without serious examination of its jurisdictional validity. Close examination of certification's jurisdictional underpinnings reveals that they are contradictory and flawed. When a federal court certifies questions of law to a state court, the procedural posture is either that the federal court temporarily relinquishes jurisdiction over the case to the state high court - the unitary conception of certification - or that that the federal court abstains pending resolution of an independent, streamlined case by the state high court - the binary conception of certification. The unitary conception is problematic because it may require state courts to exercise improperly the federal judicial power. The binary conception is inconsistent with current Supreme Court precedent. Moreover, although this precedential inconsistency can be mitigated, the binary conception of certification remains inconsistent with the fundamental purpose of the federal diversity jurisdiction.

Keywords: Jurisdiction, Federal Courts, Federalism, Certification, Constitutional Law

Suggested Citation

Nash, Jonathan, Examining the Power of Federal Courts to Certify Questions of State Law. Available at SSRN: https://ssrn.com/abstract=399940

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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