Certified Questions of State Law : An Empirical Examination of Use in Three U.S. Courts of Appeals

Federal courts routinely need to apply state law, but this task becomes complicated when no definitive state law exists. In these instances, federal judges have a few options, including making an Erie guess, or certifying the question of state law to the highest state court. During the U.S. Supreme Court’s October 2020 term, two opinions endorsed the certification of questions of state law procedure. However, despite recent interest by the U.S. Supreme Court and the U.S. Judicial Conference Committee on Federal-State Jurisdiction, little empirical research has examined the perceived benefits and burdens of the procedure. This Article provides new empirical data to help fill that gap. Using a sample of 218 certified-question events across the U.S. Courts of Appeals for the Ninth, Third, and Sixth Circuits from 2010 to 2018, we examine how certified questions originate, in what types of cases, how often U.S. courts of appeal certify the questions of state law, and whether the corresponding state supreme courts grant or deny the question. Further, to address the perceived time burden associated with certification, we examine how long each part of the process takes in the appellate court, from filing to certification to termination. We found significant variation between the three U.S. courts of appeals in certification rates and timing. While we encourage future studies regarding certification of state law questions, our data can be readily used to inform courts and academic debates regarding the benefits and burdens of the procedure