For some time, federal courts faced with unresolved questions of state law have been able to certify those questions to state courts for resolution. In the past half-century, certification practice has exploded. Nearly every state allows at least one federal court to certify questions to its state courts, and some federal courts exercise the option frequently. However, there is no analogous tool for state courts to certify questions of federal law to federal courts. This Note argues that the creation of such a tool would benefit both courts and litigants. Of course, the considerations motivating certification to state courts, such as Erie and abstention doctrines, are not equally present in the other direction. But many of the benefits of certification would be reciprocal, including enhanced uniformity, an increased sense of fairness to litigants, and institutional comity between courts. Given these benefits, this Note argues that there should be some give and take in certification practice.
John Macy, Give and Take: State Courts Should Be Able To Certify Questions of Federal Law to Federal Courts, 71 Duke L.J. 907-942 (2021)
Available at: https://scholarship.law.duke.edu/dlj/vol71/iss4/3