Against Certification

Certification is the process whereby federal courts, confronted by an open question of state law in federal litigation, ask the relevant state high court to decide the state law question. If the state high court chooses to answer, its statement of state law stands as the definitive declaration of the law on the disputed point. The case then returns to the certifying federal court, which resolves any remaining issues, including federal questions, and then issues a mandate. Although a wide range of academic commentators and jurists support certification as an example of respect for state autonomy, this Article shows that in both practice and theory certification does not reflect real comity. Rather, certification is an example of dual federalism, the view that state and federal law ought to be isolated into separate spheres of jurisprudence. For federal courts to show genuine respect for state law, they should stop treating it as foreign and decide open state law questions without certification

Demosprudence, Interactive Federalism, and Twenty Years of \u3cem\u3eSheff v. O\u27Neill\u3c/em\u3e

Professor Lani Guinier and others have recently developed a theory called demosprudence that explains the democracy-enhancing potential of certain types of US. Supreme Court dissents. Separately, state constitutionalists have described state constitutions\u27 capacity to offer a base of resistance against the U.S. Supreme Court\u27s narrow conception of individual rights. Applying these two seemingly unrelated theories to school desegregation litigation in Connecticut and to same-sex marriage litigation in Iowa, this Essay suggests that certain state constitutional decisions might function like U.S. Supreme Court dissents to enhance democratic activism. In this way, interactive federalism might usefully serve as a category of demosprudence