Certification Comes of Age: Reflections on the Past, Present, and Future of Cooperative Judicial Federalism

Hon. Kenneth F. Ripple* & Kari Anne Gallagher**

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification.¹ The survey explored federal courts’ use of certification as well as how judges perceived its use: whether certification was being over- or underused, when it should be used, and its shortcomings and advantages.² The survey was not limited to federal judges—the individuals who certify questions; it also solicited the views of state court judges—the individuals to whom certified questions are directed.³ The report generated in the survey’s wake revealed overwhelmingly positive attitudes toward certification as a tool of “cooperative federalism.”⁴ Nevertheless, some judges voiced concern that certification could be overused and could frustrate the ability of parties to litigate, of federal judges to adjudicate, and of state judges to handle an already crowded docket.⁵ To others, the benefits of certification as a method for achieving comity simply were overblown.⁶

This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond its diversity origins to other areas of law where state law expertise is uniquely important, such as habeas and the Armed Career Criminal Act (ACCA). Finally, the Article will consider ways in which the certification process can be further refined and expanded for the benefit of both the state and federal judiciaries as well as litigants.

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© 2020 Kenneth F. Ripple & Kari Anne Gallagher. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Circuit Judge, United States Court of Appeals for the Seventh Circuit; Professor of Law, Notre Dame Law School.

**Career Law Clerk to the Honorable Kenneth F. Ripple, United States Court of Appeals for the Seventh Circuit; Adjunct Professor of Law, Notre Dame Law School.

1 Jona Goldschmidt, Am. Judicature Soc’y, Certification of Questions of Law: Federalism in Practice 1 (1995).

2 See id.

3 Id.

4 Id. at 1, 110.

5 Id. at 57–58.

6 See id. at 66.