Cornell Law Review Volume 88 Article 2 Issue 6 September 2003 Examining the Power of Federal Courts to Certify Questions of State Law Jonathan Remy Nash Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 Cornell L. Rev. 1672 (2003) Available at: http://scholarship.law.cornell.edu/clr/vol88/iss6/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. EXAMINING THE POWER OF FEDERAL COURTS TO CERTIFY QUESTIONS OF STATE LAW Jonathan Remy Nash t Attracted by the perception that certification accords with norms offeder- alism and comity, federal courts have applied certification without serious examination of its jurisdictional validity. Close examination of certifica- tion's jurisdictionalunderpinnings reveals that they are contradictory and flawed. When a federal court certifies questions of law to a state court, the proceduralposture is either that of the ftderal court temporarily relinquishing jurisdiction over the case to the state high court-the "unitaryconception" of certification; or that of the federal court abstainingpending resolution of an independent, streamlined case by the state high court-the "binary concep- tion" of certfication. The unitary conception is problematic because it may require state courts to exercise the federal judicial power improperly. The binary conception is problematic because it is inconsistent with current Su- preme Court precedent. Moreover, although this precedential inconsistency can be mitigated, the binary conception of certification remains inconsistent with the fundamental purpose offederal diversity jurisdiction. INTRODUCTION .................................................. 1673 I. THE ROLE OF CERTIFICATION IN THE FEDERAL SYSTEM .... 1678 A. Federalism and the Judiciary ........................ 1678 B. Evolution of Pullman Abstention and Certification .. 1681 1. History of Pullman Abstention .................... 1681 2. History of Certification ............................ 1686 C. Overview of the Certification Procedure ............ 1690 D. Costs and Benefits of Certification .................. 1696 II. THE UNITARY AND BINARY CONCEPTIONS ................. 1701 A. Contours of the Binary Conception ................. 1701 B. Contours of the Unitary Conception ................ 1703 t Associate Professor of Law, Tulane Law School. B.A., Columbia University; J.D., New York University School of Law; LL.M., Harvard Law School. I owe great thanks to Michael Collins for extensive suggestions, comments, and support. I am indebted to Jack Goldsmith, David Shapiro, Edward Sherman, and Adrian Vermeule for valuable comments on prior drafts. I am also grateful to Jeanne Louise Carriere, Eric Claeys, David Currie, Samuel Estreicher, the Honorable Nina Gershon, Ryan Goodman, Clifford Goodstein, Ray- mondJasen, Daryl Levinson, Daniel Meltzer, and Ann Woolhandler for helpful conversa- tions; to Dean Richard Revesz and the administration and staff at New York University School of Law for graciously hosting me for part of the time that I worked on this Article; and to the staffs of the University of Chicago and Tulane Law Libraries for research support. 1672 2003] FEDERAL COURT POWER TO CERTIFY 1673 C. Amenability of Certification to the Binary and Unitary Conceptions ................................ 1711 1. ProceduralAspects ................................ 1712 a. Unitary Conception ........................... 1712 b. Binary Conception ............................ 1712 2. Perspective of the Certifying Court .................. 1713 a. Unitary Conception ........................... 1713 b. Binary Conception ............................ 1715 3. Perspective of the Court Accepting Certification....... 1717 a. Unitary Conception ........................... 1717 b. Binary Conception ............................ 1717 4. Summary of the Three Factors...................... 1718 D. The Limited Reconcilability of the Binary and Unitary Conceptions ................................ 1718 III. EXAMINATION OF THE FEDERAL JURISDICTIONAL UNDERPINNINGS OF CERTIFICATION ....................... 1721 A. Does Certification Violate Article III of the U.S. Constitution? ....................................... 1721 1. Threshold Questions .............................. 1723 2. State Court Jurisdiction in Certification Cases ....... 1725 B. Is Certification Inconsistent with the Grant of Federal Diversity Jurisdiction? ....................... 1729 1. Attempting to Harmonize Meredith and Certification Under a Unitary Conception ....................... 1733 2. Attempting to Harmonize Meredith and Certification Under a Binary Conception ........................ 1734 a. Ramifications of the Binary Conception for CertificationJurisprudence ..................... 1738 b. Inconsistency Between the Binary Conception of Certification and the Fundamental Purpose of the Federal Diversity Jurisdiction................... 1740 CONCLUSION ..................................................... 1748 INTRODUCTION A federal court is frequently called upon to determine matters of state law. In such situations, the federal court must divine how the state's high court would decide the state law question at issue.' On their own, federal courts can at best make only educated guesses as to how a state high court would decide an issue of state law.2 Thus, fed- I See infra text accompanying notes 15-17. 2 For a discussion of the difficulties federal judges face in undertaking such inquir- ies, see Dolores K Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 VA. L. REV. 1671, 1675-77 (1992). 1674 CORNELL LAW REVIEW [Vol. 88:1672 eral courts have often ruled on issues of state law only to be "cor- rected" subsequently by state high courts." Most state high courts now offer federal courts faced with ques- tions of state law, as well as similarly situated state courts, the opportu- nity to "certify" those questions to the state high court. The state high court returns to the certifying court answers to the certified questions. With the issues of state law resolved, the certifying federal court pre- sumably is then able to render judgment in the case in accordance with properly interpreted state law. Certification advances the interests of the states and their courts, as well as the interests of the federal courts.4 States are assured that state law will be applied uniformly and in accordance with the inter- pretations given by each state's high court. State courts enjoy the ben- efit of having the final say on matters of state law. 5 Federal courts are able to avoid the awkward, tenuous, and difficult chore of attempting to determine how a state high court would rule on a matter of state law.6 Indeed, from the viewpoint of federalism, certification's salutary effects are clear.7 For this reason, certification has become increas- ingly popular since its inception half a century ago.8 -1 Compare, e.g., Md. Cas. Co. v. Armco, Inc., 822 F.2d 1348 (4th Cir. 1987) (predicting that, tinder Maryland law, costs incurred by cleaning up a site contaminated with hazard- ous wastes to comply with governing environmental law were not "damages" under the language of a standard comprehensive general liability insurance policy), and Cont'l Ins. Cos. v. Northeastern Pharm. & Chem. Co., 842 F.2d 977, 985-87 (8th Cir. 1988) (en banc) [hereinafter NEPACCO], with Bausch & Lomb Inc. v. Utica Mut. Ins. Co., 625 A.2d 1021 (Md. 1993) (holding that environmental cleanup costs did not constitute "damages," and finding that the Fourth Circuit misperceived Maryland law in stating that "'the term "dam- ages" imports a distinctively legal meaning in insurance matters"' (quoting Armco, 822 F.2d at 1352)), and Farmland Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505, 510 (Mo. 1997) (finding that the Eighth Circuit had misperceived Missouri law in NEPACCO, and holding instead that environmental cleanup costs were "damages"). Such correction will likely do little for the parties to the earlier federal proceeding once it becomes final. See, e.g., DeWeerth v. Baldinger, 38 F.3d 1266, 1272-75 (2d Cir. 1994) (holding that relief under Rule 60(b) of the Federal Rules of Civil Procedure from a previously entered judgment, which was based upon a federal court's prediction of state law, was not available even though an intervening decision by the state high court explicitly rejected the federal court's prediction of state law). 4 See infra notes 89-95 and accompanying text. 5 See infra notes 89-90 and accompanying text. 6 See infra note 91 and accompanying text. 7 See infra notes 89-95 and accompanying text. 8 Florida enacted the first statute that contemplated certification of questions to its supreme court in 1945. 17A CHARLES ALAN WRIcrr ET AL., FEDERAL PRAcrIcE AND PROCE- DURE § 4248, at 160 (2d ed. 1988). The device was not used, however, until 1960. See id. Today, most states, as well as the District of Columbia and Puerto Rico, provide (whether through statute or court rule) authority for certification to their highest courts of questions of state law by federal courts. See id. § 4248, at 167 n.3; infra note 71 and accompanying text.