Federal Court Judges Research Articles

Writing the Book of Judges

AbstractThis is part 1 of a two-part series detailing the selection and confirmation processes of lower federal court judges during President Obama’s first 6 years. Our attention in part 1 is on Obama’s lower federal court appointments during the 113th Congress, specifically on the selection processes. We then examine the backgrounds and attributes of those confirmed during the 113th, looking at the appointees to the district and appeals courts separately. Confirmation processes are the main focus of part 2 of our study, where we discuss the lead-up to the nuclear option, the “fallout” from its invocation, and the renewed emphasis on the Blue Slip system as a tool of the minority party in the Senate. We conclude by taking a deeper look at the administration’s historic contribution to enhancing diversity on the federal bench across the district and circuit courts and, as well, make a similar assessment of the impact of the Obama appointments on the partisan makeup of the federal bench on the district courts and across the appellate circuits.

Gender & Justice: Why Women in the Judiciary Really Matter. By Sally J. Kenney. New York and London, UK: Routledge, 2013. 310 pp. $35.95 paper.

Gender & Justice: Why Women in the Judiciary Really Matter. By Sally J. Kenney. New York and London, UK: Routledge, 2013. 310 pp. $35.95 paper.Political scientist Sally J. Kenney's recent book, Gender & Justice: Why Women in the Judiciary Really Matter, does more than simply make the case for a gender diverse judiciary. She also suggests how to accomplish this by using case studies from a variety of countries as examples of what has and has not worked. Ultimately relying on arguments used to diversify American juries, Kenney criticizes some feminists' strategies, including reliance on argu- ments that women will somehow judge cases differently. Instead, Kenney persuasively makes the case that using arguments that gender diversity strengthens the legitimacy of the judiciary is more effective and does not lead to the same essentialist pitfalls that result from arguments regarding differences between male and female judging.Kenney suggests that gender is best understood as a social process (p. 41). Arguments about differences between men and women are both essentialist and not supported by the work of political scientists who examine American judges' voting patterns. As Kenney's painstaking review of the literature shows, she is correct in this assessment. Aside from sex discrimination cases, there is little evidence that women decide cases differently than men. Yet, political scientists and other feminists continue to focus their efforts on this difference. Kenney acknowledges concerns that if women do not make a difference in case outcomes, why bother appointing them (p. 43)? It takes Kenney several chapters to address this question.Kenney takes the reader through some examples of attempts to diversify the bench, including the experience of state and federal court judges, and judges in the United Kingdom and European Court of Justice (ECJ). Kenney begins with Rosalie Wahl, the first woman justice appointed to the Supreme Court of Minnesota. Wahl's case marshaled the emotions of women in Minnesota, cre- ating a harmonic convergence whereby the governor, who was committed to appointing a woman, had the backing to make Wahl's appointment a reality. Kenney's reliance on emotions as a rallying point is somewhat ironic. While eschewing essentialism, Kenney suggests that women candidates are most successful when they emotionally connect with other women and feminist men. This plays into stereotypes that women are more emotional and less rational, a misperception (along with the myth that women are less qualified) often used to keep women off the bench.Using the Carter Administration as an example, Kenney's chapter on the federal bench is particularly edifying in identifying a successful strategy for appointing women. President Carter appointed a record number of non-traditional judges. The com- bination of an executive branch that was dedicated to diversity, including insiders within the administration who persistently pushed for women judges, along with pressure from outsider femi- nist groups, led to these successes. Kenney is clear that feminists who argue against becoming insiders, because the inside is inher- ently patriarchal, are wrongheaded. As the Carter example shows, insiders can act as valuable allies in bringing about feminist reforms, including diversifying the bench.In Chapters 5 and 6, Kenney moves to the experience of the United Kingdom and the ECJ. These chapters are somewhat con- fusing to read because Kenney jumps back and forth in time in describing various attempts to appoint female judges. …

Submissions to Senate Standing Committee on Legal and Constitutional Affairs re Modifications to the Supreme Court Act

The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Quebec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination. Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.In my written submissions, I propose to address three issues: (1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Quebec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act? (2) Do the provisions of Bill C-4 alter the existing law? (3) Do the provisions of Bill C-4 require a constitutional amendment? A brief summary of my answers is as follows: (1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Quebec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6). A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Quebec judges on the Court have current knowledge of Quebec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Quebec courts and Quebec bar as the sole sources from which the Quebec seats on the Court could be filled.(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question. (3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.

Purposive Interpretation, Quebec, and the Supreme Court Act

On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document: an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg. In this brief paper, we examine Binnie's approach to the interpretation of ss. 5 and 6 of the Supreme Court Act. Though his interpretation of s. 5 is sound, we are less sure of his approach to s. 6. The text and legislative history of s. 6 suggest that there may well be a statutory barrier to Nadon's appointment. We also take the opportunity to reflect on purposive interpretation generally.

Profissionalismo, diferença e diversidade na advocacia e na magistratura paulistas

Em contraste com abordagens que enfatizam a identidade profissional construída a partir da semelhança, este artigo dá atenção à problemática da diferença entre profissionais do mundo do Direito, contrastando experiências e significados atribuídos por advogadas e advogados, juízas e juízes. Focaliza a interseção do profissionalismo com marcadores sociais, em especial o gênero e a sexualidade. A base de dados é a composição das sociedades de advogados e dos tribunais de justiça estadual e federal de São Paulo, a partir da qual se compara a estratificação por gênero nestas carreiras. Foram realizadas entrevistas qualitativas com 24 advogados, 18 juízes estaduais e 10 juízes federais, homens e mulheres, na capital e no interior paulista, que permitem classificar percepções de inclusão e diversidade ou de preconceito e discriminação.

Bargaining and Legal Development in the United States Courts of Appeals

Examining the systematic and private records of a former D.C. Circuit Court Judge, we examine the process by which federal circuit court judges craft legal opinions. We discover that private and contextual factors influence legal outcomes. More specifically, we find that workload considerations strongly influence circuit opinions, that some visiting and senior judges effect the process differently than do active circuit court judges, and that panel effects play but a minimal role in the creation of opinions. In short, we move the literature on circuit court decision making forward by employing private archival material that illuminates how private and contextual features influence opinion writing and legal policy.

Working Smarter, Not Harder: How Excellent Judges Manage Cases

In 2012, the American College of Trial Lawyers (“ACTL”) Task Force on Discovery and Civil Justice, the ACTL Judiciary Committee, ACTL Jury Committee, ACTL Special Problems in the Administration of Justice Committee, and IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, undertook a study on practices and methods for pretrial management of civil cases that might reduce cost and delays for litigants while saving judicial time and resources. This report is based on personal interviews with approximately 30 state and federal trial court judges, from diverse jurisdictions across the country, who were identified as being outstanding case managers and whose civil case management experience can serve as a model for others. Five general themes emerged from the interviews, with numerous specific practices and techniques discussed further in the report. Assess a case and its challenges at the outset. Use active and continuing judicial involvement when warranted to keep the parties and the case on track. There was strong consensus among the judges interviewed that becoming involved at the earliest stage of a case is critical. Some judges review cases as soon as they are assigned. Others hold off until the time of the initial case management or Rule 16 conference. Virtually all interviewed judges, however, agreed that a small expenditure of time at the very beginning of a case saves significantly more time as the case progresses. Convene an initial case management conference early in the life of the case. Discuss with the parties anticipated problems and issues, as well as deadlines for major case events. Initial conferences provide a valuable opportunity for judges to get a feel for the relative complexity of the case and the relationships among the parties and their counsel. By spending time in advance familiarizing themselves with the pleadings, judges can establish priorities for discovery. By obtaining input from counsel about the realistic timing for trial and for various pretrial events — such as amendment of pleadings, joinder of additional parties, discovery cutoffs, and expert disclosures — judges can establish a firm trial date and work backwards to set necessary pretrial deadlines that will assist in moving the case forward expeditiously. By limiting continuances to serious and unanticipated circumstances, judges can work toward meaningful and timely resolution in processing the case. Reduce and streamline motions practice to the extent appropriate and possible. Rule quickly on motions. The judges emphasized that motions practice drives cost and delay in the civil pretrial process. Many judges aim to resolve motions, especially discovery disputes, informally. This obviates the need for written submissions and focuses on oral presentations. The judges interviewed also overwhelmingly believe that prompt rulings on motions, including those announced from the bench, can dramatically expedite progress in cases, reduce litigants’ expenses, save judicial time and resources, and enhance ultimate resolution. Create a culture of collegiality and professionalism by being explicit and up front with lawyers about the court’s expectations, and then holding the participants to them. Interviewed judges universally recognized the importance of collegiality and professionalism among counsel. Most judges interviewed make their expectations of civility explicit during the initial discussions with counsel in the pretrial process. Explore settlement with the parties at an early stage and periodically throughout the pretrial process, where such conversations might benefit the parties and move the case toward resolution. Keeping the subject of settlement on the table expedites resolution, and periodically opening the topic for discussion may give lawyers the cover needed, with clients and opposing counsel, to avoid the appearance of negotiating from a position of weakness. The collective experience of these judges suggests several techniques that — used individually or together — can expedite resolution of cases with lower cost to litigants and courts. The ACTL and IAALS offer this report to share successful practices, and hope the report will spark further use of these and other practices to better serve litigants, lawyers, and the court. This report is primarily designed to provide civil trial court judges with proven techniques used by outstanding judges for more efficient pretrial case management. Nonetheless, trial lawyers may also choose to encourage adoption of these recommendations for use in cases they are handling, in order to decrease the delays and costs of today’s litigation.

Gender and Difference Among Brazilian Lawyers and Judges: Public and Private Practice in the Global Periphery

This article examines the ways in which Brazilian lawyers and judges experience difference. It focuses on how gender and diversity intersect in identity formation among women and men in public and private practice in the state of São Paulo, Brazil. In attempting not to attach one fixed meaning to the concept of difference, the research works with Avtar Brah’s typology, which aids in detecting how difference is perceived and experienced by the interviewees. The results provide a look at the specificities of professional practice in the global periphery, comparing the gender composition of law firms and gender stratification within legal and judicial careers, as well as respective perceptions of exclusion and prejudice or inclusion and diversity. The field work collected data on public and private practice and interviewed twenty-four lawyers, eighteen state judges, and ten federal court judges (women and men) in the both the capital and smaller cities of the state of São Paulo.

Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy

Campaign finance law presents quite a puzzle: it is an area of federal policy very closely tied to the interests of incumbents in the political branches, and yet it is controlled to a great extent by unelected federal court judges. While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law. Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law? This article examines the role of political leaders in judicializing campaign finance policy. In a survey of nearly a century of law, and in a close analysis of the legislative record, I make a number of surprising findings. I discover that there has been great variation in judicial review over this history and that it correlates directly with the choices activists and political leaders have made to mobilize legal institutions in the making of campaign finance policy. Moreover, I find that political leaders have maintained the upper hand in this: where the efforts of independent policy activists ran counter to their interests (as they did for a brief period prior to Watergate), legislators quickly changed jurisdiction rules to foreclose the groups’ access to federal courts. But, even as they restricted public interest litigation in the field, legislators actually moved to judicialize the policy still more – and continued to do so even after the Supreme Court substantially altered the law with its Buckley v. Valeo ruling. In fact, from 1974 onward, the judiciary’s power to interpret, enforce and, ultimately, remake policy has been deliberately delegated to it by Congress. This history reveals that campaign finance reform has long been a process of making law with lawsuits, where courts enjoy significant discretion to revise policy not primarily because of their own activism, but because political leaders have given them the job.

Elevation Adaptation: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court

We examine whether federal circuit court judges alter their behavior when vacancies open up on the United States Supreme Court so that they might get noticed by the president and nominated to the high court. Using matching methods, we compare the behavior of these contending judges during vacancy periods with the behavior of contending judges outside vacancy periods. The data show that judges who are contending for elevation are much more likely to vote consistent with the president's preferences during vacancy periods, to write concurring opinions, to write majority opinions, and to engage in strategic publishing and per curiam decisions.

A Strategic Model of Judicial Behavior in the Lower Federal Courts

Although judges may be primarily motivated by their policy preferences, their pursuit of those preferences is often constrained by institutional roles and norms both internal and external to the federal judicial system that require judges to act strategically to translate those preferences into decision outcomes. This research combined endogenous constraints to the court in the interactions amongst justices with exogenous constraints to the court present in the relationships between the judicial, executive and legislative branches into strategic models for U.S. district court and court of appeals judges. Results suggest that the strategic model does explain judicial behavior that may not otherwise be understood as driven solely by attitudinal concerns. In both district court and court of appeals judges’ opinions, the strategic model correctly predicted more decisions than the attitudinal model. A judges’ ideological conflict with the preferences of their colleagues on appellate panels, the Supreme Court, Congress and the President were found to have a significant relationship with judges’ decisions to varying degrees. This research provides empirical support for the strategic model of judicial behavior and contributes to building this relatively new theory for use in understanding the behavior of lower federal court judges.

Strategic Bargaining on the United States Courts of Appeals

We employ never before used archival data to provide the first, systematic examination of the conditions under which federal circuit court judges craft legal opinions. Examining every private record maintained by former D.C. Circuit Judge J. Skelly Wright (1962-1988), we analyze judges' private responses to opinion drafts, as well as the conditions under which opinion authors accommodate their colleagues' suggested changes. Our results provide strong support for ideological, contextual, and institutional components to the development of law. These results further highlight the need for additional archival research on these important policymaking courts.

Public Perceptions of the Lower Federal Courts

The lower federal courts decide cases every day that are essential to a democracy and yet, lower federal court judges are not accountable to the people nor are their decisions often reversed (or even reviewed) by the U.S. Supreme Court. Their decisions are not self-implementing. Hence, our confidence in these local federal courts -- to make the right decisions and to decide cases fairly -- is essential to upholding the rule of law. But, we know little about levels of confidence in these courts or knowledge about these courts. This article seeks to inform on both of those points via use of a national randomly generated survey.

Between Merit and Politics: The Selection of Federal Judges in Argentina

In 1998, Argentina established a Judicial Council to select lower federal Courts Judges. The Judicial Council administers examinations to applicants to determine their ranking based upon professional merit. A short list of the top three candidates is sent to the President who then nominates one candidate and asks for the consent of the Senate for his appointment to the bench. The establishment of the Judicial Council resulted from reforms promoted by International Development agencies, such as the World Bank, the Inter-American Development Bank and USAID. It was meant to depoliticize judicial nominations, according to a meritocratic model used mainly by European countries. However, Argentina did not adopt a purely meritocratic system: the membership of the Judicial Council includes politicians (Senators and Representatives), the process permits the modification of merit-based rankings, and the ultimate selection of judges relies upon political decisions by the President and the Senate. In this study, I examine empirically the decisions of the Judicial Council over the last ten years, including all the short-lists and nominations for lower federal Court Judges, to analyze to what extent merit was a determinative factor in the process. Among other findings, the results show that around 70% of the candidates were included in the short-list because of merit, but in the remaining 30% of cases, politics also played a role. At the same time, 70% of the short-lists included at least one candidate chosen because of political factors. These results give an accurate description of how the system works, and illustrate that politics are an important factor in selecting judges in Argentina. Consequently, I argue, the institutional design of the process should be modified to permit an open and public discussion of ideology or moral values of the candidates.

Legal-Political Pressures and African American Access to Managerial Jobs

Prior work on equal employment opportunity tends to focus on a limited set of factors that influence change in organizational structures and policies. This article considers a broader set of potentially influential legal and political coercive pressures—namely, discrimination lawsuits, federal court dynamics, and state political ideology—and analyzes their implications for concrete changes in organizational behavior. Using national establishment-level data on the supermarket industry from 1983 to 1998, I estimate African American managerial representation using a series of auto-distributed lag (ADL) models with fixed-effects. The results show that in the year following a lawsuit filing against a particular supermarket establishment, African Americans are more likely to enter management. Furthermore, over the long run, coercive isomorphism (whereby establishments subject to a lawsuit come to adopt industry averages for African American managerial representation) seems to prevail. Finally, legal pressures associated with federal court judges' gender and racial/ethnic diversity and state-level government ideology are also influential. I conclude by discussing these results and the importance of systematically incorporating political process into sociological theorizing and analyses of workplace diversity.

Estimating Preferences of Circuit Judges: A Model of Consensus Voting

This paper develops a consensus voting model for estimating preferences of federal circuit court judges. Unlike standard ideal point models, which assume that judges vote sincerely for their preferred outcomes, the consensus model accounts for the norm of consensus in the courts of appeals by including a cost of dissent in the judicial utility function. A test of the consensus voting model on a data set of asylum appeals demonstrates that it provides a substantially better fit than a comparable sincere voting model and also generates more accurate predictions of voting probabilities. The model generates credible estimates of the impact of panel composition on case outcomes, which is surprisingly large in the asylum cases. Even though 95 percent of these decisions were unanimous, roughly half of the cases could have been decided differently if assigned to different panels.

Ignoring Advice and Consent? The Uses of Judicial Recess Appointments

The authors seek to answer the questions of why presidents use the power to temporarily seat federal court judges during recesses of the Senate. The use of the recess power can upset the carefully calculated separation of powers envisioned by the framers, shifting power away from one branch of government toward another. Examining every judicial recess appointment from 1789 to 2004, the authors discover that presidents are conditionally strategic in their use of the unilateral authority to appoint federal court judges during Senate recesses but that the use of this power is careful and spare, especially in the modern era.

US Women Federal Court Judges Appointed by President Carter

There is considerable disagreement as to whether any gender differences on the bench are symbolic, substantive, or both. This paper, based on never-before published surveys and personal interviews conducted in the early 1980s, contributes to that discussion by describing what women appointed to the federal bench by President Carter between 1976 and 1980 had to say about gender differences in their first years in office. I conclude that these early experiences and comments by women on the bench are still relevant today and presage much of the research on judicial gender which has followed.

Commentary on “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas”

The news that Federal Judges, which I co-authored with Virginia Hettinger and Todd Peppers, was one of the frequently cited articles published in Political Research Quarterly came as a surprise. While we, of course, thought the article made a significant contribution and were pleased that the reviewers and editor agreed, it seemed an unlikely prospect to win a competition for citations. After all, the article appeared under the designation of a research note, and the focus was on an issue central to a subfield but not to the discipline at large. How then can the scholarly attention given to Federal Judges be explained? The impact of the article, I think, can be attributed in some part to external political and intellectual forces. While political science research sometimes seems impervious to current political debates, the controversy surrounding judicial appointments in the Bush administration increased scholarly interest in judicial selection. Likewise, the publication of Sheldon Goldman's (1997) seminal Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan contributed to increased scholarly attention to selection of lower federal court judges. The citation count of our article undoubtedly benefited from the resulting increase in publications to which it was relevant However, the benefit of a rising tide of scholarly interest in judicial selection is not sufficient to place our article among the select category of most cited. As the analysis below indicates, credit for that status appears to be attributable largely to the methodological contribution of the article. In the following essay, I will describe that contribution and survey the reactions of citing authors. The recognition that lower federal courts are important makers generated two important and vigorous research programs among judicial scholars: One focused on the process of selecting judges and one focused on the factors influencing their decisions. While these research programs were individually fruitful, few studies prior to our Federal Judges had attempted to explore the linkage between the politics and process of selection and the decisions of judges (exceptions were Rowland and Carp 1996; Rowland, Carp, and Stidham 1984; Songer 1982). The principal hindrance to that inquiry was the reliance of scholars on the party of the appointing president as the measure of judicial preferences for lower federal court judges. The party of the appointing president has consistently been linked to judicial behavior, with judges appointed by Democratic presidents more liberal in their decision making than those appointed by Republican presidents. While this result supports the inference that the party that controls the presidency matters in the selection process, it does not tell us how it matters. The problem is one of behavioral equivalency. All three of the causal mechanisms elaborated in Goldman's (1997) selection agendas could result in the judges appointed by Democratic presidents being more liberal than those appointed by Republican presidents. First, Democratic presidents are more liberal than their Republican counterparts, and each may nominate candidates with preferences close to their own (Goldman's policy agenda). Second, Democratic political activists are more liberal than Republican activists, and presidents may simply reward activist members of their party with judicial posts (Goldman's partisan agenda). Third, presidents may reward their friends with judicial appointments (Goldman's personal agenda), and with few exceptions, those friends will also be party activists. Thus, employing the party of the appointing president to measure judicial preferences presents a roadblock to assessing these alternative selection strategies.1 In addition to the problem of behavioral equivalence, the party of the appointing president is, at best, a poor proxy for judicial preferences. …

Federal Court Certification of State-Law Questions: Active Judicial Federalism

Judicial federalism?the sharing of jurisdiction and interpretive authority between the state and federal courts?poses tremendous challenges to courts attempting to resolve individual disputes in an increasingly complex legal landscape. As a practical matter, state judges must regularly interpret and apply federal statutory and constitu tional law, while both supplemental and diversity jurisdiction bring state statutory, constitutional, and common-law issues to federal judges. In most cases, a judge apply ing the law of another jurisdiction can look to court decisions from that jurisdiction for guidance, but when no such guidance exists, judges are forced to put themselves in the shoes of another. State court judges are generally left to their own devices and cannot avoid inter preting federal laws, even when doing so presents a matter of first impression. Federal court judges, on the other hand, have a number of weapons in their arsenal that let them avoid prediction of unsettled state-law questions. First, under certain circum stances, a federal court exercising federal-question jurisdiction may decline to exer cise supplemental jurisdiction over state-law claims, thus forcing the parties to litigate their dispute in both state and federal court. Second, under relatively rare circumstances, a federal court may invoke the abstention mechanism first described by the Supreme Court in Railroad Commission of Texas v. Pullman Co. (1941). Specifically, Pullman abstention is appropriate when resolution of a state-law question may eliminate the need for a federal court to address a federal constitutional question. When Pullman abstention is properly invoked, the federal court stays further proceedings on the case before it while the parties file a declaratory judgment action in state court; the federal court retains jurisdiction over the federal claims but stays its hand until the state-law question wends its way through the entire state court process. Finally, federal court judges may retain jurisdiction over all claims, state and federal, and bypass the unwieldy Pullman process by going straight to those responsi ble for declaring state law: federal judges may certify novel questions of state law directly to the state s highest court. Federal courts have been quick to point out this particular advantage of certification in Pullman abstention cases like Be?lotti v. Baird (1976) and Gnffin Hospital v. The Commission on Hospitals and Healthcare (1986). Forty-seven states, the District of Columbia, and Puerto Rico have some provision of state law, in either a statute or a court rule, that allows the highest court in the state to answer legal questions certified by federal courts. At first blush, the procedure appears to be the ultimate act of deference to the sovereignty of states and the sanctity of state law. As one commentator remarked, "[T]he availability of certification produces a weird sort of security patrol in which federal courts surveil the border between the [state and federal] systems and from time to time repel their own attempts to invade the province of state law" (Selya,