When federal courts need to apply state law and no clear articular of state law exists, federal judges have few options. While generating an Erie "guess" remains one option, another involves certifying the legal question to the state's highest court. Proponents suggest that state certification promotes federal-state cooperation, reduces forum shopping incentives, and, on net, reduces costs and increases efficiencies. Critics, by contrast, emphasize the unidirectional federal-state cooperation, the persistence of forum shopping, and the associated costs and delay.
While the SCOTUS and Judicial Conference have expressed growing interest in the state certification alternative of late, helpful data are scant. A recent paper by Jason Cantone (George Mason--criminology) and Carly Griffin (Univ. Ill.--ag.), Certified Questions of State Law: An Empirical Examination of Use in Three U.S. Courts of Appeals, seeks to contribute by presenting results drawn from three federal courts of appeals. While the analyses are purely descriptive, temporally bound (from 2010 through 2018), and limited to three federal circuits, they nonetheless cast some helpful initial empirical light on some of the basic contours of the certification process.
Drawing on a sample (N=218) of certified question events across three federal circuits from 2010-2018, the paper explores: "how often the certified question procedure is utilized in three U.S. Courts of Appeals, how often the circuits certify a question, how often states grant the certified question, and how long the process takes." Notably, the paper finds important variation across the three circuits when it came to state certification rates and duration. The paper's abstract follows.
"Federal courts routinely need to apply state law, but this task becomes complicated when no definitive state law exists. In these instances, federal judges have a few options, including making an Erie guess, or certifying the question of state law to the highest state court. During the U.S. Supreme Court’s October 2020 term, two opinions endorsed the certification of questions of state law procedure. However, despite recent interest by the U.S. Supreme Court and the U.S. Judicial Conference Committee on Federal-State Jurisdiction, little empirical research has examined the perceived benefits and burdens of the procedure. This Article provides new empirical data to help fill that gap.
Using a sample of 218 certified-question events across the U.S. Courts of Appeals for the Ninth, Third, and Sixth Circuits from 2010 to 2018, we examine how certified questions originate, in what types of cases, how often U.S. courts of appeal certify the questions of state law, and whether the corresponding state supreme courts grant or deny the question. Further, to address the perceived time burden associated with certification, we examine how long each part of the process takes in the appellate court, from filing to certification to termination. We found significant variation between the three U.S. courts of appeals in certification rates and timing. While we encourage future studies regarding certification of state law questions, our data can be readily used to inform courts and academic debates regarding the benefits and burdens of the procedure."
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