Toward Judicial Comity: Certification in the Courts

Abstract

Certification is a procedure whereby federal courts may ask state courts of last resort to clarify an ambiguous provision of state law. This increasingly popular device of deference operates as an alternative to abstention and to the casual prediction of the meaning of state law. Certification is a permissive and discretionary mechanism; as such, it is neither universal in its usage nor uniform in its application. The thirty-eight states that authorize the procedure differ on which federal courts may participate and whether the answer to the certified question must determine, or resolve, the lawsuit. Our survey results indicate that federal and state judges alike praise certification for its contributions to intersystem harmony. It conserves judicial resources, advances litigant interests, minimizes interpretive misguesses, and avoids repetitive litigation.