Toward Judicial Comity: Certification in the Courts

Certification is a procedure whereby federal courts may askstate courts of last resort to clarify an ambiguous provisionof state law. This increasingly popular device of deferenceoperates as an alternative to abstention and to the casual predictionof the meaning of state law. Certification is a permissive anddiscretionary mechanism; as such, it is neither universal inits usage nor uniform in its application. The thirty-eight statesthat authorize the procedure differ on which federal courtsmay participate and whether the answer to the certified questionmust determine, or resolve, the lawsuit. Our survey resultsindicate that federal and state judges alike praise certificationfor its contributions to intersystem harmony. It conserves judicialresources, advances litigant interests, minimizes interpretivemisguesses, and avoids repetitive litigation.