Interjurisdictional Certification and Choice of Law
62 Pages Posted: 6 Jun 2016
Date Written: April 1988
Abstract
There is a story, probably apocryphal, that, at a 1970s conference discussing the great potential and even greater problems of some economically developing countries, a rather cynical American economist is supposed to have remarked that "Brazil is the country of the future - and always will be." Some commentators believe that much the same could be said about the certification process, but with greater accuracy.
Certification has beguiled and to some extent disappointed two generations of legal scholars. Intended to resolve problems that arise when a court of one jurisdiction must apply the law of another jurisdiction, certification is the process by which the first court may inquire of a court in the jurisdiction whose law is at issue for help in determining what the law is. The certification process is inherently attractive because it eliminates the need for a court either to guess at another jurisdiction's uncertain law or to refrain altogether from trying to apply that law.
The difficulty that certification can ease typically arises in one of two situations. The first situation occurs when a federal court, for whatever reason, must identify and apply the substantive law of a state. Federal courts hearing diversity cases are the most likely to inquire into state law, but the problem can also arise when a federal court's subject-matter jurisdiction is based on the presence of a federal question. The second situation occurs when a state court's own conflict - of - laws rules direct it to apply the law of another state.
The first situation, involving the use of certification by federal courts, has spawned a limited amount of case law. The second situation has produced neither reported opinions nor scholarly comment. In fact, the almost total dearth of scholarly discussion of certification in the state-to-state choice-of-law context demonstrates best of all the anomaly of certification that has consigned the process, like Brazil, to a future of eternally unrealized potential. On the one hand, certification has substantial promise. On the other hand, certification may remain just that-a doctrine whose promise is still mostly unfulfilled.
A purpose of this Article is to redress the scholarly deficiency in discussion of certification in the state-to-state choice-of-law situation. Part II of this Article traces the origin of certification in the aftermath of Erie Railroad Co. v. Tompkins, which altered so much the federal courts' approach to nonfederal questions. Parts III and IV of this Article explore the reasons offered for the relatively infrequent use of certification in both Erie and conventional state-to-state choice-of-law cases, with special attention to both the problems and the unique, mostly unnoticed promise of the use of certification in state-to-state choice-of-law litigation. The Article concludes with a discussion of the results and meaning of one of the few empirical studies of the use of certification in the United States.
Keywords: conflict of laws, certification, choice of law
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